Missouri Legislature Nullifies All Federal Gun Control

Anyone see this yet? I did a search and didn't find it. If already post please delete!

Missouri Legislature Nullifies All Federal Gun Control Measures by a Veto-Proof Majority (http://blog.tenthamendmentcenter.com/2013/05/missouri-legislature-nullifies-all-federal-gun-control-measures-by-a-veto-proof-majority/)

Jefferson City, Mo (May 8, 2013) – Tonight, the Missouri State House voted to send Governor Jay Nixon what could arguably be the strongest defense against federal gun control measures in American history. The vote was 116-38.

HB436, introduced by Representative Doug Funderburk in February, was initially passed by the House in April by a vote of 115-42. Last week, the State Senate approved the bill with an amendment which did not change any of its nullification aspects. The vote there was 26-6. The bill then needed one final vote in the house which happened just before 10pm local time this evening.

The votes in both the House and Senate are by a strong veto-proof majority. Local activist Matt Radcliffe acknowledged as much when he said, “Governor Nixon can do nothing and it will automatically become law July 1st. Or he can sign it into law. Or he can veto it then his veto will be overridden in the house and it will become law anyway!”

As law, HB436 would nullify virtually every federal gun control measure on the books – or planned for the future. It reads, in part:

All federal acts, laws, orders, rules, and regulations, whether past, present, or future, which infringe on the people’s right to keep and bear arms as guaranteed by the Second Amendment to the United States Constitution and Article I, Section 23 of the Missouri Constitution shall be invalid in this state, shall not be recognized by this state, shall be specifically rejected by this state, and shall be considered null and void and of no effect in this state.

(2) Such federal acts, laws, orders, rules, and regulations include, but are not limited to:
(a) The provisions of the federal Gun Control Act of 1934;
(b) The provisions of the federal Gun Control Act of 1968;
(c) Any tax, levy, fee, or stamp imposed on firearms, firearm accessories, or ammunition not common to all other goods and services which could have a chilling effect on the purchase or ownership of those items by law-abiding citizens;
(d) Any registering or tracking of firearms, firearm accessories, or ammunition which could have a chilling effect on the purchase or ownership of those items by law-abiding citizens;
(e) Any registering or tracking of the owners of firearms, firearm accessories, or ammunition which could have a chilling effect on the purchase or ownership of those items by law-abiding citizens;
(f) Any act forbidding the possession, ownership, or use or transfer of any type of firearm, firearm accessory, or ammunition by law-abiding citizens; and
(g) Any act ordering the confiscation of firearms, firearm accessories, or ammunition from law-abiding citizens.

The legislation also includes misdemeanor criminal penalties if agents of the federal government attempt to enact gun control measures that violate the Constitution of the United States and State Constitution of Missouri.

The immediate effect of the law would be as follows:

1. All state and local law enforcement would be required to stop enforcing, or even providing any assistance in enforcing, federal gun control measures – all of them.

2. Grassroots activists should immediately start pressing local governments – county, city and town – to pass an ordinance which a) states an unwavering dedication to the new law passed, and b) requires all local law enforcement and all government assets to immediately cease in the enforcement of federal gun control measures.

3. Eric Holder will likely send a letter to threaten the state if it decides to enforce the penalty provisions of the act.

4. Other states will gain the courage to follow the lead started by Kansas, and now Missouri – and pass similar laws.

LEGAL INFORMATION ON REFUSING TO ENFORCE

There is absolutely ZERO serious dispute about the fact that the federal government cannot “commandeer” the states to carry out its laws. None. Even the Supreme Court has affirmed this multiple times.

In the 1992 case, New York v. United States, the Supreme Court ruled that Congress couldn’t require states to enact specified waste disposal regulations.

In the 1997 case, Printz v. United States, the Supreme Court ruled that the federal government could not command state law enforcement authorities to conduct background checks on prospective handgun purchasers.

In the 2012 case, National Federation of Independent Business v. Sebelius, the Supreme Court ruled that a significant expansion of Medicaid was not a valid exercise of Congress’s spending power, as it would coerce states to either accept the expansion or risk losing existing Medicaid funding.

In each of these cases, the Supreme Court made is quite clear that their opinion is that the federal government cannot require the states to act, or even coerce them to act through a threat to lose funding. Their opinion is correct. If the feds pass a law, they can sure try to enforce it if they want. But the states absolutely do NOT have to help them in any way.

Not being a constitutional lawyer, it will be interesting to see how this goes.

BobTheTomato

May 10, 2013, 06:46 PM

Till they make violations felonies and confiscate the property of federal agents and sell it to make the harmed whole......oh well....

murphys_law

May 10, 2013, 07:22 PM

Love it. Step in the right directional doubt. We will have to see how the enforcement is done, that will be the real litmus test.

swalton1943

May 10, 2013, 08:10 PM

Wonder how it will play on sbrs, full-auto, and silencers?

murphys_law

May 10, 2013, 08:22 PM

Wonder how it will play on sbrs, full-auto, and silencers?

That's exactly what I'm wondering.

toiville2feathers

May 10, 2013, 08:29 PM

I believe they will run into the same problems that Kansas did.

jeepnik

May 10, 2013, 08:59 PM

Won't hold up in Federal Court. While I don't agree with the example I'm using, in California, marijuana is legal for medical purposes. But it's still a federal crime. So, the feds have arrested folks and shut down the clinics and charged them with federal crimes. Some have been tried and convicted.

The whole idea, as put forth in the Constitution, that the states rights are superior to the federal rights just doesn't apply. Too bad, cuz the reason states rights were supposed to be above federal rights was to prevent the federal government from gaining too much power (sorts the reason we got rid of the king in the first place).

JohnM

May 10, 2013, 09:02 PM

What problem has Kansas had?
The US AG had a hissy fit, nothing's happened since that I've heard.

61Woody

May 10, 2013, 09:29 PM

Not being a constitutional lawyer, it will be interesting to see how this goes.
Not being a constitutional lawyer, it will be interesting to see how this goes.

Cant the Feds withhold money like they did back in the late 70s if states didn't adopt the 55MPH speed limit?

orionengnr

May 10, 2013, 09:30 PM

I like their style. If nothing else, they are setting the example for others to follow. If 25 or so states passed this legislation, it would end up with the Supreme Court pretty quickly. And with the Court as it sits, we would have (IMHO) a ~60% chance of prevailing.

While I don't agree with the example I'm using, in California, marijuana is legal for medical purposes. But it's still a federal crime. So, the feds have arrested folks and shut down the clinics and charged them with federal crimes.
Honestly, it appears that everyone and his dog has a "medical" marijuana card in CA. I lived there for 20 adult years, escaped in 2001 and still know a number of people who live there.
If the Feds are prosecuting anyone, it is a token effort (pun definitely intended) and a drop in the bucket.

Jeff H

May 10, 2013, 09:36 PM

Pot is still legal in Colorado. This might just fly, especially is more states get involved.

DSling

May 10, 2013, 09:39 PM

Cant the Feds withhold money like they did back in the late 70s if states didn't adopt the 55MPH speed limit?

Then why should the states pay into the federal tax (I like this game)? Technically federal taxes are illegal and only started to help a war. The federal government liked the money and kept it going.

sota

May 10, 2013, 09:42 PM

Cant the Feds withhold money like they did back in the late 70s if states didn't adopt the 55MPH speed limit?

And the state(s) can stop sending money to the federal gov't, as well as stop providing state (county or town, if they're on-board with the state's actions) controlled utilities and services. I don't know how it works in Kansas and Missouri, but in NJ the towns and counties own the sewage and water treatment rights. would be a damn shame if the pipeline from certain complexes was closed off. Nevermind MO and KS are heavy gun rights states... I wouldn't be surprised if a Militia order came through and the good armed citizens of those states came to the aid of the police.

That all being said, I'm ready to help with the midnight rides in with staples/contraband if things really go bad for those states.

We live in interesting times.

captmoto

May 10, 2013, 09:44 PM

I think these decisions are like a 2 x 4 between the eyes of a stubborn mule. It's an attention getter. We'll have to see if it works.

gfanikf

May 10, 2013, 09:59 PM

They should have at least used the term National Firearms Act instead of Gun Control Act of 1934...which doesn't actually exist.

Then why should the states pay into the federal tax (I like this game)? Technically federal taxes are illegal and only started to help a war. The federal government liked the money and kept it going.
Uh, 16th amendment.

fanchisimo

May 10, 2013, 10:18 PM

One of the reasons this is awesome is whether it's pot or guns, states are deciding what works for them, regardless of federal oversight. I think that's how the Founders wanted it. It gives us options as citizens, if we don't like the state we're in, there are 49 others to choose from to suit your needs. This is a tenth amendment issue, and the Kansas and Missouri non-compliance legislation asserts that amendment. It's an interesting and pivotal time we are living in.

sota

May 10, 2013, 10:24 PM

Uh, 16th amendment.

Yea... if the feds can ignore the 2nd amendment, I have no qualms with states ignoring the 16th amendment. remember, a law is only a law if it's enforced. otherwise it's just text on a piece of paper. much like other things such as restraining orders.

murphys_law

May 10, 2013, 10:25 PM

And the state(s) can stop sending money to the federal gov't, as well as stop providing state (county or town, if they're on-board with the state's actions) controlled utilities and services. I don't know how it works in Kansas and Missouri, but in NJ the towns and counties own the sewage and water treatment rights. would be a damn shame if the pipeline from certain complexes was closed off. Nevermind MO and KS are heavy gun rights states... I wouldn't be surprised if a Militia order came through and the good armed citizens of those states came to the aid of the police.

That all being said, I'm ready to help with the midnight rides in with staples/contraband if things really go bad for those states.

We live in interesting times.

I will be meeting you from the inside.

Frank Ettin

May 10, 2013, 10:37 PM

Interesting symbolically and good political theater, but of little practical effect.

...There is absolutely ZERO serious dispute about the fact that the federal government cannot “commandeer” the states to carry out its laws. None. Even the Supreme Court has affirmed this multiple times...That is true. But nothing prevents federal agents from enforcing federal law.

As the Founding Fathers provided in the Constitution (Article VI, Clause 2, emphasis added):Clause 2. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Founding Fathers also provided in the Constitution that questions regarding the application of laws under the Constitution shall be the province of the federal courts (Article III, Sections 1 and 2):Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish....

Section 2. The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and ... Controversies to which the United States shall be a Party;...

...Honestly, it appears that everyone and his dog has a "medical" marijuana card in CA. I lived there for 20 adult years, escaped in 2001 and still know a number of people who live there.
If the Feds are prosecuting anyone, it is a token effort (pun definitely intended) and a drop in the bucket... And the marijuana issue is very different.

The handling of the marijuana issue by the federal government is a matter of "prosecutorial discretion." A prosecuting authority gets to decide when, where and how to enforce criminal laws. So a prosecuting authority, like the United States Justice Department may decide as a matter of policy to go easy on something like recreational or medical marijuana in a State which has legalized such, at least under some circumstances. Such a policy decision might be driven by a conclusion that enough people, particularly among an administration's constituency, find the conduct relatively benign. That might not be the case with other matters.

In any case, the feds haven't been giving marijuana a complete pass; for example see --

The fairly recent decision of the United States Supreme Court upholding federal regulation of marijuana in Gonzales v. Raich, 545 U.S. 1 (2005).

SleazyRider

May 10, 2013, 10:42 PM

... It gives us options as citizens, if we don't like the state we're in, there are 49 others to choose from to suit your needs. ...
Perhaps. But with one notable exception: the Bill of Rights. I was once under the impression that its tenets applied to all citizens regardless of the state in which one lives. Then I moved to New York and realized I was wrong.

barnbwt

May 10, 2013, 11:17 PM

Cant the Feds withhold money like they did back in the late 70s if states didn't adopt the 55MPH speed limit?

The block-grant coercion system has done more to damage states' rights than probably anything else. Originally passed in the name of humanitarian concern, it does little more than cause less responsible or resource-laden states to become dependent upon Federal approval of their affairs.

Speed limits, BAC levels, education requirements, healthcare requirements, and countless other items are all controlled Federally by, essentially, blackmail. Having allowed themselves to become dependent on Federal aid, many states truly no longer have a choice in dictating their affairs in these areas, since their own laws require them to pay for services but maintain balanced budgets simultaneously.

In any case, the feds haven't been giving marijuana a complete pass
Not to get off topic too much, but it's highly advantageous for the Democrats to maintain the illusion they are "easy" on marijuana even if the facts would indicate otherwise (this is the party that took down "big tobacco" you naiive hippies :rolleyes: :D). Much like their claims to be friendly to illegal immigrants while bloating the enforcement agency charged with their deportation as much as possible--but always being certain to give loud lip service to the plight of those poor souls whom they are throwing out on their ears :D

TCB

303tom

May 11, 2013, 10:15 AM

Never been more PROUD to be a Missourian............

GambJoe

May 11, 2013, 04:09 PM

Did anyone consult with the citizens of Missouri or was the Democratic process hijacked like it was in New York under the latest hysteria.

murphys_law

May 11, 2013, 06:06 PM

Did anyone consult with the citizens of Missouri or was the Democratic process hijacked like it was in New York under the latest hysteria.

This is a very pro gun state......

Texan Scott

May 11, 2013, 07:49 PM

I think the MAIN difference between this and the way the NY SAFE Act was passed is that the people who elected their reps in Missouri had ample opportunity to hear about and comment on the bill, and thus far, I've yet to hear any hue and cry opposing it.

garryburrell

May 11, 2013, 08:13 PM

The way the usa was to work is the people come first then the states then the feds. But some were the power was revised. It need to be restored back. The usa is ( We the people for the people NOT we the fed by the fed.

barnbwt

May 12, 2013, 12:23 AM

But some were the power was revised
That would probably be the Civil War, which made it clear to all states that the Union (now capitalized) was no longer bound by common-purpose so much as blood. Personally, I don't care for the road this "nullification" stuff takes us down; I'd much rather we have a legit, frank, Constitutional Debate using the proper amendment process rather than provoke a Constitutional Crisis where we start ripping apart at the seams and subverting our processes.

As in the past, that choice will likely not be anyone's to make, however

TCB

SharpsDressedMan

May 12, 2013, 12:43 AM

The federal laws aimed at controlling guns throughout the states are based on the federal jurisdiction to control INTERSTATE commerce, specifically, in firearms. If so-called restricted weapons do not enter into interstate commerce, they may not fall under the purview of federal control. THAT is the basic premise of a state's challenge to federal intervention in attempting to control arms that remain in the state and never leave the borders of that state. Federal law is restricted with certain jurisdictional limits and parameters.

r1derbike

May 12, 2013, 01:06 AM

I would like to see the assertions of county (sheriffs/deputies) LEOs that they will meet Federal Officers at their county borders, and arrest Federal LEOs if they are to enforce Federal Law as rejected by the state.

This may have disastrous results, depending on which side has the most gear, and I'm betting the Federals may arrive ready to do battle with military equipment provided by King Hussein.

THIS would be a major newsworthy event, and could shape the entire LEO structure as we know it. I'm willing to bet that DHS will be a major player in this standoff, if it occurs.

Nobody wants lives lost in a State/Federal battle ground, and especially citizens deputized to bring guns to bear on the Federals, DHS, National Guard, and other alphabet soup agencies called-in because of the magnitude of the event.

Wouldn't it be ironic, that our Constitution and Bill of rights were to be contested first, with members of our very own law enforcement agencies, who were sworn to uphold the meaning and spirit, were the first to draw first blood?

Interesting times, indeed.

BigBoreJay

May 12, 2013, 01:08 AM

Did anyone consult with the citizens of Missouri or was the Democratic process hijacked like it was in New York under the latest hysteria.

I, for one, did not wait for my elected representatives to consult with me regarding my opinion. I called, and e-mailed, and sent paper, letting them know exactly where I stand.

I am writing in regards to HB436, and Senator Nieves companion bill SB325. I strongly encourage you to support both efforts. Prior to the 17th amendment to the US Constitution it was the job of our US Senators to represent the states interests in Washington DC. After the 17th amendment however US Senators are elected the same as House Members, by popular vote, which has reduced and almost eliminated the states voice on the national level. I cannot recall a US Senator asking: “Is this Constitutional? Does this violate the 9th or 10th amendment?” before casting his or her vote on a particular issue. Per the 2nd, 9th, and 10th, amendments to the US Constitution, as well as the fact that the states created the federal government in the first place, it now is imperative that we assert our voice and our rights if we intend on keeping them.

To quote historian Dr. Thomas E. Woods, Jr:

What the Supremacy Clause actually says is: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land.”

The standard law-school response deletes the most significant words of the whole clause. Thomas Jefferson was not unaware of, and did not deny, the Supremacy Clause. His point was that only the Constitution and laws which shall be made in pursuance thereof shall be the supreme law of the land. Citing the Supremacy Clause merely begs the question. A nullifying state maintains that a given law is not “in pursuance thereof” and therefore that the Supremacy Clause does not apply in the first place.

Such critics are expecting us to believe that the states would have ratified a Constitution with a Supremacy Clause that said, in effect, “This Constitution, and the Laws of the United States which shall be made in pursuance thereof, plus any old laws we may choose to pass, whether constitutional or not, shall be the supreme law of the land.”

No freeman shall be debarred the use of arms. - Thomas Jefferson

For Liberty,

ME

Those interested in Nullification head on over to Tom's website, lots of good resources:

The Supremacy clause cannot legitimately be used to abrogate the Second Amendment. The Second Amendment was passed after the Supremacy clause, and therefore supercedes it.

monotonous_iterancy

May 12, 2013, 10:59 AM

I notice that the bill says "gun control act of 1934" instead of "national firearms act of 1934". Given that they didn't use the actual name of the law, wouldn't that be a problem under the scrutiny of a court?

Frank Ettin

May 12, 2013, 12:53 PM

The Supremacy clause cannot legitimately be used to abrogate the Second Amendment. The Second Amendment was passed after the Supremacy clause, and therefore supercedes it. What absolute drivel. When has a federal court ever ruled anything of the sort?

In fact, the Supreme Court ruled in 1833 the Bill of Rights did not apply to the States (Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)). In 1876 the Supreme Court ruled specifically that the Second Amendment did not apply to the States (United States v. Cruikshank, 92 U.S. 542 (1876)). The Second Amendment was not applied to the States until 2010 (McDonald v. Chicago, 561 U.S. 3025 (2010)).

Of course you wrote "legitimately", but your opinion of the legitimacy of the the decisions of the federal courts doesn't really count for anything. As I noted above, the Founding Fathers assigned the judicial power of the United States to the federal courts and specifically authorized the federal courts to exercise that judicial power to decide cases arising under the Constitution.

AlexanderA

May 12, 2013, 01:30 PM

This whole idea of states "nullifying" federal law is, in itself, a nullity. All it amounts to is politicians trying to make cheap political points.

The Supremacy Clause of the Constitution provides that the federal constitution, laws, and treaties trump any state laws to the contrary. Even state-level law enforcement officers are sworn to uphold the (federal) constitution, so it would be against their oath to try to enforce purported state laws in conflict with it.

The last time nullification was seriously proposed was by John C. Calhoun in 1832. President Andrew Jackson made short work of that argument. Of course, the South Carolina nullifiers tried again, by seceding, in 1860, but we all know how that one turned out.

Really, this is a blind alley for the gun-rights movement. It would be wise not to go there.

alsaqr

May 12, 2013, 02:42 PM

This whole idea of states "nullifying" federal law is, in itself, a nullity. All it amounts to is politicians trying to make cheap political points.

Bingo!!!

It's cheap political theater.

mrvco

May 12, 2013, 05:15 PM

While I certainly wouldn't want to be the test case for this legislation... even symbolic "refusal to enforce" is a pretty strong statement (especially if it catches on) in a civil disobedience sort of way.

BoltActionPrepper

May 12, 2013, 06:31 PM

Go Missouri! Go!

303tom

May 12, 2013, 09:11 PM

We called em and said this is the way it is going to be or else your job is on the line..............

Archangel14

May 12, 2013, 09:26 PM

Not being a constitutional lawyer, it will be interesting to see how this goes.

I am a lawyer who deals with constitutional issues just about every day. No, this won't hold up. There's a thing called the "Supremacy Clause." Essentially, every federal law that is applicable to the states will supersede contradicting state law, assuming the federal law is constitutional. That's a very basic take on it, but I hail Misso, as they sent a VERY strong message to federal legislators.

444

May 12, 2013, 09:29 PM

I haven't been keeping up with gun rights news for several years. I thought this had to be an April Fool's joke at first.

I don't see this as political theater.
If the state, county, and local law enforcement agencies won't enforce any federal firearms laws, I see this as significant. Depending on how far this is taken.

If the BATF wants to conduct a raid, they are on their own. No state, or local back up. What happens if a guy is wanted for a firearms violation and is fleeing; does this mean that the locals will refuse to stop him or participate in his apprehension ?

If someone is arrested for another crime and there are also illegal guns involved, appearently the local police won't even notify any federal agency ?

What if a nationwide hunt is on for a guy that is wanted for firearms violations and the MO police know where he is, do they just ignore it ?

When you say, "this won't hold up". What won't hold up ?
Are the local police required to enforce federal laws ?

barnbwt

May 12, 2013, 09:50 PM

No one's said Missouri has nullified the intent of the laws, they are merely claiming the authority to do so from the Feds. It's still not kosher to saw your shotgun below 18.5", or build your own machine gun ;). This is much more a states' rights issue than a practical, on the ground issue that would directly affect us.

IF they then go on to pass laws usurping or conflicting with federal laws, then we got something. At any rate it doesn't matter; it'll be decades before the Supremes (the court, not the group) rule on the matter.

TCB

zxcvbob

May 12, 2013, 09:59 PM

If the state, county, and local law enforcement agencies won't enforce any federal firearms laws, I see this as significant. Depending on how far this is taken.

If the BATF wants to conduct a raid, they are on their own. No state, or local back up. What happens if a guy is wanted for a firearms violation and is fleeing; does this mean that the locals will refuse to stop him or participate in his apprehension ?

If someone is arrested for another crime and there are also illegal guns involved, appearently the local police won't even notify any federal agency ?

What if a nationwide hunt is on for a guy that is wanted for firearms violations and the MO police know where he is, do they just ignore it ?

The "Missouri Compromise" ;)

SharpsDressedMan

May 12, 2013, 10:05 PM

This has been discussed in Class III circles for years. Missouri is just doing what many in the NFA neighborhood have wanted to do all along: challenge the US Govt's claim to be able to restrict and govern INTRA-state commerce and regulation of firearms. There is nothing in the constitution that permits the feds to regulate (infringe) firearms totally WITHIN a state. Federal power applies to INTERSTATE regulations. What MO is claiming is that the 1934 law went beyond the powers of the feds, and was never reviewed by the Supreme Court, so the matter was never laid to rest. True, this is a test case for power by the states, but the specific challenge is one that a state just might win, and strengthen states' powers. It just HAPPENS to be on the subject of guns, state's rights to arm their citizen/militias, etc.

vont01

May 12, 2013, 11:40 PM

I also am a Missouri " show Me" citizen. If it works as proposed it will be fantastic and surely other states will follow.

MJU1983

May 13, 2013, 02:24 AM

I am a lawyer who deals with constitutional issues just about every day. No, this won't hold up. There's a thing called the "Supremacy Clause." Essentially, every federal law that is applicable to the states will supersede contradicting state law, assuming the federal law is constitutional. That's a very basic take on it, but I hail Misso, as they sent a VERY strong message to federal legislators.

Citing the Supremacy Clause merely begs the question. A nullifying state maintains that a given law is not “in pursuance thereof” and therefore that the Supremacy Clause does not apply in the first place.

Frank Ettin

May 13, 2013, 02:48 AM

Citing the Supremacy Clause merely begs the question. A nullifying state maintains that a given law is not “in pursuance thereof” and therefore that the Supremacy Clause does not apply in the first place. And that will be a question for the federal courts. See post 21.

MJU1983

May 13, 2013, 03:37 AM

And that will be a question for the federal courts. See post 21.

I disagree.

Why would the states care what a federal court says in regards to a grievance between them and the federal government? It would be like us settling a dispute by asking my mom to referee. We hope she'd be fair but I think you know who she will side with. ;)

Just because we have a history of bowing to the federal government doesn't mean we should continue doing so. The states preceded the Union. In the American system no government is sovereign, not the federal government and not the states. The peoples of the states are the sovereigns. It is they who apportion powers between themselves, their state governments, and the federal government. In doing so they are not impairing their sovereignty in any way. To the contrary, they are exercising it. Since the peoples of the states are the sovereigns, then when the federal government exercises a power of dubious constitutionality on a matter of great importance, it is they themselves who are the proper disputants, as they review whether their agent was intended to hold such a power.

Cue James Madison:

The resolution of the General Assembly [the Virginia Resolutions of 1798] relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it. The resolution supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislature.

However true, therefore, it may be, that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert for ever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.

The “parties to the constitutional compact” being, of course, the peoples of the states.

I'll side with Jefferson on this one. :cool:

1. Resolved, That the several states composing the United States of America are not united on the principle of unlimited submission to their general government; but that, by compact, under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each state acceded as a state, and is an integral party, its co-States forming, as to itself, the other party; that this government, created by this compact, was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

2. Resolved, That the Constitution of the United States, having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offenses against the law of nations, and no other crimes, whatsoever; and it being true as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, not prohibited by it to the States, are reserved to the States respectively, or to the people,” therefore the act of Congress, passed on the 14th day of July, 1798, and intituled “An Act in addition to the act intituled An Act for the punishment of certain crimes against the United States,” as also the act passed by them on the — day of June, 1798, intituled “An Act to punish frauds committed on the bank of the United States,” (and all their other acts which assume to create, define, or punish crimes, other than those so enumerated in the Constitution,) are altogether void, and of no force; and that the power to create, define, and punish such other crimes is reserved, and, of right, appertains solely and exclusively to the respective States, each within its own territory.

Frank Ettin

May 13, 2013, 04:13 AM

And that will be a question for the federal courts. See post 21.

I disagree.Of course you do. But you're not a lawyer, and you don't understand how these things work in the real world.

MJU1983

May 13, 2013, 04:32 AM

Of course you do. But you're not a lawyer, and you don't understand how these things work in the real world.

That's the best you can come up with? A Red Herring / Ad hominem.

FWIW you are not taught "the Constitution" in law school. You will never study the actual Constitution, or its history, or the State ratifying conventions in your quest at becoming a "Constitutional Lawyer".

Frank Ettin

May 13, 2013, 04:42 AM

Of course you do. But you're not a lawyer, and you don't understand how these things work in the real world.

That's the best you can come up with? A Red Herring / Ad hominem...It's a simple statement of fact. Your pretty rhetoric will not settle things. That and $2.00 will get you a cup of coffee at Starbucks.

Many of the Founding Fathers were lawyers and understood the role of the courts in deciding disputes. And that is why they assigned the judicial power of the United States to the federal courts and authorized the federal courts to exercise judicial power to decide, among other things, cases arising under the Constitution.

It's about achieving actual results in the real world.

303tom

May 13, 2013, 11:48 AM

It's a simple statement of fact. Your pretty rhetoric will not settle things. That and $2.00 will get you a cup of coffee at Starbucks.

Many of the Founding Fathers were lawyers and understood the role of the courts in deciding disputes. And that is why they assigned the judicial power of the United States to the federal courts and authorized the federal courts to exercise judicial power to decide, among other things, cases arising under the Constitution.

It's about achieving actual results in the real world.
Nullification is the legal theory that states have the right to nullify, or invalidate, federal laws which they view as being unconstitutional & the Constitution says our RIGHT to keep & bear arm shall not be infringed !................

Ryanxia

May 13, 2013, 12:45 PM

Way to go MO! Stand strong with Kansas and hopefully we will all join you.

Frank Ettin

May 13, 2013, 01:04 PM

Nullification is the legal theory that states have the right to nullify, or invalidate, federal laws which they view as being unconstitutional & the Constitution says our RIGHT to keep & bear arm shall not be infringed !...It is not a legal theory recognized by the courts. It is a political theory that has never actually worked.

As I have cited in post 21, the Founding Fathers provided in the Constitution that federal law is supreme. Also as I've cited in post 21, the Founding Fathers provided in the Constitution that the federal courts will decide disputes arising under the Constitution and disputes in which the United States is a party.

These "firearm freedom" laws reflect a strong symbolism and might turn out to be meaningful politically. But it's highly unlikely that they will be fruitful in court.

In the meantime, the cornerstone of 21st Century Second Amendment jurisprudence was laid in 2008 in the Heller decision. The next stone was set in 2010 in McDonald. These results were achieved by people who understand how things actually work in the real world.

semperfi63

May 13, 2013, 02:00 PM

This whole idea of states "nullifying" federal law is, in itself, a nullity. All it amounts to is politicians trying to make cheap political points.

The Supremacy Clause of the Constitution provides that the federal constitution, laws, and treaties trump any state laws to the contrary. Even state-level law enforcement officers are sworn to uphold the (federal) constitution, so it would be against their oath to try to enforce purported state laws in conflict with it.

The last time nullification was seriously proposed was by John C. Calhoun in 1832. President Andrew Jackson made short work of that argument. Of course, the South Carolina nullifiers tried again, by seceding, in 1860, but we all know how that one turned out.

Really, this is a blind alley for the gun-rights movement. It would be wise not to go there.
I also don't see much chance of winning anything by nullification but your history is a little off. See Wisconsin 1854 -- state law nullifying Federal Fugitive Slave Act.

NelsErik

May 13, 2013, 02:00 PM

Jury Nullification sure seems to have worked in prohibition... I think I read somewhere it occurred approximately 60% of the time. Of course we have United States v Sparf which pretty much legalized tyranny at whole.

Frank Ettin

May 13, 2013, 04:21 PM

Jury Nullification sure seems to have worked in prohibition...Jury nullification is an entirely different matter. It is merely recognition of the fact that under the constitutional prohibition on double jeopardy the prosecution may not appeal a jury verdict of acquittal in a criminal case. And since no one may intrude into the deliberations of a jury, if a jury is agreed that the law, as instructed by the judge, should not be applied for whatever reason, and returns a verdict obviously completely at odds with the judge’s instructions, nothing will happen to the jurors.

Jury nullification can be a two edged sword. Some may look on it as a check on government by permitting a jury to acquit someone who might be considered a victim of government excess. But I suspect that during some of the "bad old days" of the post Reconstruction South and some of the early days of the Civil Rights Movement, juries regularly practiced nullification to let off various murders of Blacks, participants in lynch mobs and the like. We've certainly seen perversion of jury nullification -- at times when no White jury would convict a White man of a crime against a Black (or Native American or Asian or Hispanic) no matter what the law or the facts were.

Outlaw Man

May 13, 2013, 05:51 PM

I like seeing states pass these laws and wish mine would, also. While I agree that it is mostly political grandstanding, so were a lot of the things the colonies did leading up to the Revolution. I'm not saying we're headed there, but I am saying to wait on final judgement of its merits until the dust settles.

I am curious, though. If this were to eventually result in a Supreme Court case over the validity of the interstate commerce clause as it pertains to NFA/GCA, and the court ruled that intrastate firearms were, in fact, exempt from these laws, what has to happen for these laws to be deemed unconstitutional, rather than just N/A if it stays within the state? In other words, is there a scenario under which SCOTUS throws the act out completely?

taliv

May 13, 2013, 06:08 PM

Your pretty rhetoric will not settle things. That and $2.00 will get you a cup of coffee at Starbucks.

so it's worth what, $4?

i hold with those who say it will have some effect.

rduchateau2954

May 13, 2013, 06:40 PM

The whole idea, as put forth in the Constitution, that the states rights are superior to the federal rights just doesn't apply. Too bad, cuz the reason states rights were supposed to be above federal rights was to prevent the federal government from gaining too much power (sorts the reason we got rid of the king in the first place

Treading lightly here, but isn't that exactly what the civil war was about?

Cosmoline

May 13, 2013, 06:50 PM

It's political, not legal. The feds can and will still arrest and convict you in their courts for violation of federal gun laws. They don't need the state's permission to do it.

So applaud it all you want, but don't make the mistake of thinking it's going to be a get out of federal prison free card.

rookorami

May 13, 2013, 06:59 PM

Exactly. Its mostly political, may reduce chances of local LEO acting but its still a felony. Even if it is representative will no real world affect. I am hoping it will spur the kind of conversation that we want. It may just be a statement but statements can start or advance movements. Take for instance the legalization of pot in a few states. Lets just hope it advances what we want.

SharpsDressedMan

May 13, 2013, 07:12 PM

Come on Frank, you know IN THE REAL WORLD a judge, be it federal or local, sometimes favors the lawyer/presentation he likes best, the law be damned. It's a crapshoot, and either side might get the favorable judgment. Missouri may as well give it a shot!

Cosmoline

May 13, 2013, 07:20 PM

I think some folks may be misunderstanding the nature of federalism. State legislatures cannot overrule federal statutes. States may well be able to instruct their OWN law enforcement to not cooperate with the feds, but they cannot keep the feds from enforcing federal law. Nor would they have any opportunity to do so. If an AFT agent arrests a person in that state for violation of federal gun law, the case would be tried in federal court. There is no state involvement. The state is not a party. The court does not need the state's blessing to proceed.

A more interesting question is what impact a bar on state cooperation might have, though that's a two way street. The feds can shut down state access to everything from federal backup to the critical crime labs.

taliv

May 13, 2013, 07:57 PM

cosmoline, sure, but instructing the locals not to assist would still have some effect. and further, since the feds are notoriously uneven in their enforcement, individuals officers may decide to look the other way and not press the issue because they want to avoid a state conflict.

besides, it does keep up the momentum, and keep it in the news.

lloveless

May 13, 2013, 08:18 PM

Maybe I am confused. What it looks like on the ground to me: If an Federal officer comes to Missouri, arrests someone on a federal gun charge, then the officer just committed a felony in Missouri by state law. That officer could then be tried and convicted of a felony by the state of Mo. YES or NO??
LL

Frank Ettin

May 13, 2013, 09:33 PM

Your pretty rhetoric will not settle things. That and $2.00 will get you a cup of coffee at Starbucks.

so it's worth what, $4?Nope. Around here one can get a regular coffee (Tall) for under $2.00.

i hold with those who say it will have some effect.I know that many people share that belief. I just haven't seen anyone state a solid basis for that belief, at least with regard to an action in the courts, under the law. But maybe it can have a political effect.

Come on Frank, you know IN THE REAL WORLD a judge, be it federal or local, sometimes favors the lawyer/presentation he likes best, the law be damned. It's a crapshoot, and either side might get the favorable judgment...No, actually I know no such thing. Having earned a good living practicing law for over thirty years, I know that is not true.

Of course, there are some poor judges, but it's been my experience that the vast majority of judges (and lawyers) take their roles in the legal system very seriously and try very hard to reach proper conclusions based on the law and facts. Apparent unpredictability flows from the reality that sometimes the law is not clear, especially in certain applications, and often the facts are uncertain.

...If an Federal officer comes to Missouri, arrests someone on a federal gun charge, then the officer just committed a felony in Missouri by state law. That officer could then be tried and convicted of a felony by the state of Mo. YES or NO??No. See The Constitution of the United States, Article VI.

Ignition Override

May 13, 2013, 09:48 PM

For those who believe that a state could nullify a specific federal law, doesn't that mean that they could also modify any ATF regulations that they decide to change?

As certain states have had tighter gun regs than the majority of states, apparently no state can have Looser regs than the Feds, for example to allow purchase of a select-fire gun via laws under which could be only a state process.

Akita1

May 13, 2013, 09:57 PM

Posted by Frank Ettin
Apparent unpredictability flows from the reality that sometimes the law is not clear, especially in certain applications, and often the facts are uncertain.

This is a ton of noise over a moot point, but agreed Frank. Some/Many (take your pick) laws are drafted intentionally "unclear" to let the courts figure out the practical application of the intent - especially on the Federal level. Also, note that any law is effectively a statement of intent without "clearly" drafted regulations to enact it - that is never a given.

And $2 in San Fran, really?

Frank Ettin

May 13, 2013, 10:17 PM

...Some/Many (take your pick) laws are drafted intentionally "unclear" to let the courts figure out the practical application of the intent...Again, I know from my professional experience, which has included helping to write laws, that this is not true. I've spent many hours with legislative staff hammering out language in an effort to promote clarity in likely applications. The thing is that things happen which could not have been anticipated.

In any case, we're getting off topic. Let's get back to the real subject of this thread.

Akita1

May 13, 2013, 10:29 PM

Again, I know from my professional experience, which has included helping to write laws, that this is not true. I've spent many hours with legislative staff hammering out language in an effort to promote clarity in likely applications. The thing is that things happen which could not have been anticipated.

In any case, we're getting off topic. Let's get back to the real subject of this thread.
OK, but you're not the only one here that has done that (helped draft and pass both laws and regulations). I have personally been in drafting sessions where the words "let the courts decide that/we're not going there" were used in more than one instance. I am not saying your experience is the same, but it certainly does exist.

Hammering out language may be very well-intentioned but, as you state repeatedly above, the "real world" gets in the way because human behavior has very little to do with drafting and intent. You can never imagine each and every scenario that will apply because the world is not a static place. To your point, it took a long time/all the way until Heller and McDonald to "apply" 2A to the States.

Done being off topic as you instruct and will give you, as the mod, the last word. As always, thanks for your guidance.

303tom

May 13, 2013, 10:34 PM

And The Tenth Amendment says; The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

MJU1983

May 13, 2013, 10:35 PM

It is not a legal theory recognized by the courts. It is a political theory that has never actually worked.

It's a legal theory recognized by Thomas Jefferson and James Madison. The Virginia and Kentucky Resolutions of 1798 spell it out clearly (http://billofrightsinstitute.org/wp-content/uploads/2011/12/VirginiaKentuckyResolutions.pdf). James Madison said the states were “duty bound to resist” when the federal government violated the Constitution.

That's not true. The Principles of ’98 were in fact resorted to more often by northern states than by southern, and from 1798 through the second half of the nineteenth century were used in support of free speech and free trade, and against the fugitive-slave laws, unconstitutional searches and seizures, and the prospect of military conscription, among other examples. And nullification was employed not in support of slavery but against it.

As I have cited in post 21, the Founding Fathers provided in the Constitution that federal law is supreme. Also as I've cited in post 21, the Founding Fathers provided in the Constitution that the federal courts will decide disputes arising under the Constitution and disputes in which the United States is a party.

You are reading the Supremacy Clause like this: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof, plus any old laws we may choose to pass, whether constitutional or not, shall be the supreme law of the land.” The key part to the Supremacy Clause is "in pursuance thereof."

Which part of the Constitution indicates that? Judicial review is not in the Constitution. It was a precedent set by Marbury v. Madison (1803). In the same way, why can’t states nullifying federal laws set a precedent? According to anti-nullifiers’ own logic, nullification would have to be acceptable.

These "firearm freedom" laws reflect a strong symbolism and might turn out to be meaningful politically. But it's highly unlikely that they will be fruitful in court.

In the meantime, the cornerstone of 21st Century Second Amendment jurisprudence was laid in 2008 in the Heller decision. The next stone was set in 2010 in McDonald. These results were achieved by people who understand how things actually work in the real world.

Again, why would a state care about a federal court? They are finally realizing that the 9th and 10th amendments are just as important as the rest of them. And that I L-O-V-E! :D

Frank Ettin

May 13, 2013, 11:17 PM

And The Tenth Amendment says; The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Yes it does. So what? Article VI, Clause 2 still says:Clause 2. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

And as provided for by the Founding Fathers in Article III of the Constitution, disputes about which applies when and how will be a matter for the federal courts.

It's a legal theory recognized by Thomas Jefferson and James Madison. The Virginia and Kentucky Resolutions of 1798 spell it out clearly. James Madison said the states were “duty bound to resist” when the federal government violated the Constitution....In over two hundred years that has not been adopted by the courts. It seems it's pretty unlikely to be now.

...You are reading the Supremacy Clause like this: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof, plus any old laws we may choose to pass, whether constitutional or not, shall be the supreme law of the land.” The key part to the Supremacy Clause is "in pursuance thereof."...No, I'm pointing out that any dispute about whether a federal law has been adopted in pursuance to the Constitution will be decided, as the Founding Fathers intended, by the federal courts -- not by you or by the Legislature of the State of Missouri.

...Which part of the Constitution indicates that? Judicial review is not in the Constitution. It was a precedent set by Marbury v. Madison (1803)....

Again, as the Founding Fathers provided in the Constitutions (Article III):Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish....

Section 2. The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,...

And thus disagreements concerning the application of the the Constitution to the resolution of particular disputes is the province of the federal courts -- something clearly the Founders intended.

The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute.

And, as Chief Justice John Marshall wrote in the decision in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), emphasis added:....It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.....

Note also that many of the Founding Fathers (the delegates to the Constitutional Convention who signed the Constitution) were lawyers. They were familiar with English Common Law (the basis of out legal system) and that for a long time it had been customary for the courts, under the Common Law, to consider the validity of such matters as the Acts of Parliament and the actions of the Crown under the rather amorphous collection of statutes, court judgments, treaties, etc., that became understood in the Common Law to be the English Constitution. And thus there was Common Law precedent, as no doubt understood by the Founding Fathers, for the invalidation of a law as unconstitutional being within the scope of the exercise of judicial power. (And English cases continued to be cites by courts of the United States for many years after Independence.)

And while John Marshall may not have been a Founding Father, he wasn't at the Constitutional Convention, he should at least be entitled to be considered a founding uncle. He was a delegate to the Virginia Convention that would ratify or reject the Constitution and, together with James Madison and Edmund Randolf, led the fight for ratification.

So:

In its ruling in Marbury the Supreme Court was merely exercising its explicit authority given it in the Constitution to exercise judicial power to decide cases arising under the Constitution. In doing so and reaching its decision in Marbury it was applying established Common Law principles -- just as courts were, and are, expected to do.

And as Marshall pointed out, to decide the matter in Marbury the Court had to either sustain an act of Congress or conclude that the act of Congress was contrary to the Constitution, and thus sustain the Constitution. Either the act of Congress was valid, yielding one result, or it was invalid as conflicting with the Constitution, yielding a different result.

In other words, the Court could not, in Marbury, decide the case without choosing either a law enacted by Congress or the Constitution.

And without judicial review under the Constitution of acts of Congress or other actions of public officials, what would be the remedy for such a law or action that one believed was repugnant under the Constitution? Do we have a civil war over every disagreement about the constitutionality of a law? Does each person get to decide for himself whether a law is constitutional and therefore whether to abide by it?

...In the same way, why can’t states nullifying federal laws set a precedent?...Only if the United States Supreme Court sustains the proposition. Can you cite any U. S. Supreme Court ruling which could serve as a basis for a future ruling sustaining the proposition that a State may nullify federal law?

I know that many people share that belief. I just haven't seen anyone state a solid basis for that belief, at least with regard to an action in the courts, under the law. But maybe it can have a political effect.

there might be what? 150 federal agents in MO? and 6000 State and Local? How could telling 95+% of the sworn officers to ignore federal gun laws NOT have an effect?

MJU1983

May 13, 2013, 11:28 PM

Maybe I am confused. What it looks like on the ground to me: If an Federal officer comes to Missouri, arrests someone on a federal gun charge, then the officer just committed a felony in Missouri by state law. That officer could then be tried and convicted of a felony by the state of Mo. YES or NO??
LL

That's what they originally wanted. I was at the Capitol when HB170 was being considered. The Senators and Representatives I talked with thought that it "would be a good first step." I smiled. :)

I'm not 100% sure on the status of HB170 but I am checking with someone now on its status.

The bill that did pass is HB436 which included language for class A misdemeanors, not class D felonies as outlined in HB170.

Frank Ettin

May 13, 2013, 11:33 PM

...The Principles of ’98 were in fact resorted to more often by northern states than by southern, and from 1798 through the second half of the nineteenth century were used in support of free speech and free trade, and against the fugitive-slave laws, unconstitutional searches and seizures, and the prospect of military conscription, among other examples. And nullification was employed not in support of slavery but against it....Yet, as I've noted, such efforts were uniformly rejected by the U. S. Supreme Court. Cite cases in which such state action was sustained by the federal courts and was actually effective in practice.

...there might be what? 150 federal agents in MO? and 6000 State and Local? How could telling 95+% of the sworn officers to ignore federal gun laws NOT have an effect? ...Yes that can have a practical effect. But not a legal effect. It might be interesting to see what resources the federal government might decide to commit to the enforcement of federal guns laws in Missouri.

readyeddy

May 13, 2013, 11:39 PM

Say the Missouri Attorney General enforces the statute and gets charged with obstruction of justice or some other crime by the feds. Can the Missouri AG assert that the federal firearm law in question is unconstitutional under the 2A as a defense? Or is that not relevant to the charge relating to interfering with federal law enforcement?

316SS

May 14, 2013, 12:37 AM

Yes that can have a practical effect. But not a legal effect. It might be interesting to see what resources the federal government might decide to commit to the enforcement of federal guns laws in Missouri.

I think it is interesting when this legislation is referred to as "political" or more derisively as "political theater." As if the judiciary could be divorced from politics. If that were the case then we gun owners wouldn't be concerned that this administration might have the opportunity to nominate Supreme Court justices. After all, whoever nominates them, they will faithfully interpret the law, independent of their personal political beliefs. Right? :rolleyes: I contend that practical, legal, and political issues are indistinguishable and only time will tell how those issues play out.

MJU1983

May 14, 2013, 12:56 AM

And as provided for by the Founding Fathers in Article III of the Constitution, disputes about which applies when and how will be a matter for the federal courts.

That's a pretty broad interpretation. It may be taught in various law schools but I doubt Jefferson or Madison would agree with that assertion. If you have proof for your claim, feel free to share.

You're claiming Article III settles this, Jefferson was likely aware of the existence of Article III. But the Court's powers are judicial, not political. Article III deals with cases in law and equity, not matters of political contest. It was not until the mid-twentieth century, which is rather a long span of time after the ratification of the Constitution, that the Court began seriously claiming such a power to settle political disputes between the states and the federal government. The first time it had tried to do so wasn't until 1890. Even Edward Livingston, the principal drafter of Andrew Jackson's Nullification Proclamation, conceded half the argument: "In cases in which a law of the United States may infringe the constitutional right of a State, but which in its operation cannot be brought before the Supreme Court, under the terms of the jurisdiction expressly given to it over particular persons or matters, that court is not created the umpire between a State that may deem itself aggrieved and the General Government."

James Madison, who was also aware of Article III, explained in his Report of 1800 that there of course needed to be an additional remedy for the people when even the judicial branch had failed them. All three branches of the federal government were liable to encroach upon the rights of the people. Said Madison:

The resolution [of 1798] of the General Assembly [of Virginia] relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential right of the parties to it. The resolution supposes that dangerous powers not delegated, may not only be usurped and executed by the other departments, but that the Judicial Department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and consequently that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another, by the judiciary, as well as by the executive, or the legislature.

In over two hundred years that has not been adopted by the courts. It seems it's pretty unlikely to be now.

I don't think nullifiers care too terribly much about the courts. The Supreme Court has upheld a lot of terrible laws, they aren't infallible. Nullification is the rightful remedy for when all branches fail you. From a States perspective, they haven't had a real voice in Washington DC for the past 100 years after the adoption of the 17th amendment.

No, I'm pointing out that any dispute about whether a federal law has been adopted in pursuance to the Constitution will be decided, as the Founding Fathers intended, by the federal courts -- not by you or by the Legislature of the State of Missouri.

And I ask that you cite it. I've listed countless items to back-up what I'm saying. I disagree. As I posted previously, in the American system no government is sovereign, not the federal government and not the states. The peoples of the states are the sovereigns. Since the peoples of the states are the sovereigns, then when the federal government exercises a power of dubious constitutionality on a matter of great importance, it is they themselves who are the proper disputants, as they review whether their agent was intended to hold such a power.

Again, as the Founding Fathers provided in the Constitutions (Article III):

If they intended it to be used for what you are stating, they would have discussed it in great detail. All I ask is for some quotes from said Founding Fathers to back-up your claims.

I didn't want to quote your entire text in regards to Chief Justice John Marshall and Marbury v. Madison. BUT, I did want to comment... :p

Jefferson did nothing to erase what has since proved to be the fatal precedent established by Marbury, that the Supreme Court had the authority to strike down a state or federal law whose constitutionality it disputed. Jefferson could have asked Congress for an amendment to reverse Marshall's opinion in Marbury and formally declare that the Supreme Court did not have the power of judicial review. Jefferson believed that since Marshall's opinion was issued obiter dictum and had no historical precedent, it was therefore null and void. He was right, but that did not prevent future justices from citing it.

And without judicial review under the Constitution of acts of Congress or other actions of public officials, what would be the remedy for such a law or action that one believed was repugnant under the Constitution? Do we have a civil war over every disagreement about the constitutionality of a law? Does each person get to decide for himself whether a law is constitutional and therefore whether to abide by it?

Nullification. No, secession is fine to any non-tyrant, and acceptable under the 10th amendment, Civil War need not apply. Thomas Jefferson believed that the 10th amendment “was the cornerstone of the entire Constitution” and he believed in a states right to secede from the Union. Yes.

Only if the United States Supreme Court sustains the proposition. Can you cite any U. S. Supreme Court ruling which could serve as a basis for a future ruling sustaining the proposition that a State may nullify federal law?

No. However, we should.

Lunie

May 14, 2013, 12:58 AM

Did anyone consult with the citizens of Missouri or was the Democratic process hijacked like it was in New York under the latest hysteria.
The Citizens of Missouri were working in support of, and not in opposition to, this bill. The public hearings in the House and Senate were packed with more witnesses supporting than there would have been time to hear, and no one rose to speak against.

Citizens were calling, emailing, or telling their legislators in person to support pro-gun measures like this. Missouri may be somewhat bipolar when it comes to political parties, but it is supportive of the right to keep and bear arms.

Last year, there was no significant grassroots push for good legislation, and none fell out of the tree. This year there was a push, and it has borne fruit.

Frank Ettin

May 14, 2013, 01:27 AM

And as provided for by the Founding Fathers in Article III of the Constitution, disputes about which applies when and how will be a matter for the federal courts.

That's a pretty broad interpretation. It may be taught in various law schools but I doubt Jefferson or Madison would agree with that assertion. If you have proof for your claim, feel free to share.

You're claiming Article III settles this,...That plus 200 years of U. S. Supreme Court precedent rejecting nullification. You, on the other hand, have not cited a single case.

No, I'm pointing out that any dispute about whether a federal law has been adopted in pursuance to the Constitution will be decided, as the Founding Fathers intended, by the federal courts -- not by you or by the Legislature of the State of Missouri.

And I ask that you cite it....And I have. See the citations to U. S. Supreme Court cases rejecting nullification.

...I've listed countless items to back-up what I'm saying...None of which has been upheld by the U. S. Supreme Court.

Again, as the Founding Fathers provided in the Constitutions (Article III):

If they intended it to be used for what you are stating, they would have discussed it in great detail. All I ask is for some quotes from said Founding Fathers to back-up your claims...Phooey. What I have is over 200 years of Constitutional jurisprudence. In the real world that will be the basis upon which courts will be deciding future cases.

...Jefferson believed that since Marshall's opinion was issued obiter dictum and had no historical precedent, it was therefore null and void. He was right, but that did not prevent future justices from citing it...No, Jefferson was wrong about Marshall's opinion in Marbury being null and void. What has proven Jefferson wrong is the Marshall's opinion has continued to be applied in the deciding of subsequent cases. It in fact has helped shape the entire history of constitutional jurisprudence and has thus affected the ways in which courts have ruled, affecting the lives and property or real people in the real world, for over 200 years. That doesn't sound very "null and void" to me.

Only if the United States Supreme Court sustains the proposition. Can you cite any U. S. Supreme Court ruling which could serve as a basis for a future ruling sustaining the proposition that a State may nullify federal law?

No. However, we should.In other words, the U. S. Supreme Court has never ruled in a way that would support your contentions. And thus your view rests entirely on wishful thinking.

Frank Ettin

May 14, 2013, 03:53 AM

...Thomas Jefferson believed that the 10th amendment “was the cornerstone of the entire Constitution” and he believed in a states right to secede from the Union...I should have addressed this earlier.

In any case, while Jefferson might have believed that, he was wrong. The U. S. Supreme Court indeed ruled that a State could not unilaterally secede from the Union (Texas v. White, et al, 74 U.S. 700, 19 L.Ed. 227, 7 Wall. 700 (1868)).

...I don't think nullifiers care too terribly much about the courts. The Supreme Court has upheld a lot of terrible laws, they aren't infallible...They probably don't. But that doesn't matter. Ultimately the rulings of the U. S. Supreme Court will be the final statements of the law.

Yes, the Court has upheld terrible laws, but --

It's not necessarily the province of a court to decide if a law is good or not. It's the province of a court to apply the law to decide the dispute before it. But the fact is that a great many improper, unwise, useless or dangerous things the government can do would be found by a court to be entirely constitutional. Being constitutional is not a guaranteed of wisdom.

The Supreme Court can, and has on rare occasion, reversed itself or carved out a better result by distinguishing a current case from a past, perhaps unsuitable, precedent.

All branches of government, both state and federal, can make bad decisions. Congress and state legislatures have passed lousy laws, and federal and state executives have done really dumb things. That's why we have elections and a system of checks and balances.

The bottom line is that you have laid out a lot of interesting historical information. But none of it really relates to how things are going to be worked out and decided here and now. Perhaps such things would be material in an alternate universe; but in our real world, not so much.

303tom

May 14, 2013, 10:09 AM

All I can say is, all of you that are arguing against what we are trying to do here in Missouri.......We are sorry your states gun laws suck & you are just jealous, now I am done with this discussion !...................

Outlaw Man

May 14, 2013, 10:19 AM

there might be what? 150 federal agents in MO? and 6000 State and Local? How could telling 95+% of the sworn officers to ignore federal gun laws NOT have an effect?
This sums up what I think would be the biggest, immediate effect. Sure, there will be people that will turn others in to the Feds, but that won't be commonplace. Eliminating enforcement is a due facto nullification.

I'm not sure I'd be willing to take that chance, though.

Cosmoline

May 14, 2013, 01:43 PM

That officer could then be tried and convicted of a felony by the state of Mo. YES or NO??

Assuming you could find a DA willing to do it, the officer could be indicted, at which time the federal district court would step in and quash the indictment. There is zero chance of a conviction or even a trial. It's a protest law, not a real one.

How could telling 95+% of the sworn officers to ignore federal gun laws NOT have an effect?

Well in practice the state troopers and local LEO's don't go around enforcing arcane federal gun laws. Federal law may be used as a leveraging tool. There are, for example, federal enhancement statutes for gun crimes that state prosecutors do use as a threat (ie cooperate with us or it's over to the feds). I'll be interested to hear from them on this, but my guess is a law barring such things will do far more harm to state prosecutions than to federal.

mgkdrgn

May 14, 2013, 09:01 PM

ya, we tried something along those lines here in SC 150 so years ago ... didn't work out all that well

Gaiudo

May 14, 2013, 09:10 PM

Well in practice the state troopers and local LEO's don't go around enforcing arcane federal gun laws.

But this isn't just about arcane federal gun laws. I have never, not once, bumped into a federal LEO in daily life. I have however been concerned on multiple occasions about small-town sheriffs and highway patrol that I encounter that don't seem to know even local law. If this law can eliminate (through coercion and threat of law) the knee-jerk negative reaction by LEOs to firearms I'm very happy indeed.

Bruno2

May 14, 2013, 10:21 PM

All I can say is, all of you that are arguing against what we are trying to do here in Missouri.......We are sorry your states gun laws suck & you are just jealous, now I am done with this discussion !...................

I like this one!:D

Cosmoline

May 14, 2013, 10:39 PM

I have however been concerned on multiple occasions about small-town sheriffs and highway patrol that I encounter that don't seem to know even local law.

There are still plenty of state and local gun laws for those folks to enforce. In fact I would have been a lot more impressed if MO had opted to clean their own house first and struck all their own gun laws off the books. Something they'd be well within their rights to do. This is symbolic measure, not a real one.

Lunie

May 14, 2013, 10:41 PM

Frank Ettin,

I have considered responding several times. I don't doubt your expertise, but I do disagree with your attitude. One thing is certain; if we only continue to do do the same things (that is, to not attempt to push boundaries), we will continue to get the same result. It's easy to get lost in "How things are done around here" and lose sight of "How things could be better".

"We've been making sand by banging two rocks together for generations." Well, does that mean it is the "right" or "best" way to do it, or are we just doing it as a matter of precedent? I don't believe that our system is operating according to what our Constitution mandates, and my choice is to either accept that or work to fix it. We need a more effective means of keeping Federal power within Constitutional limits, because what we have been doing is not enough. We need a more effective check on Federal encroachment. Is it nullification? Maybe, or maybe not. A repository of absolute foreknowledge, I am not.

I think this bill does good things, many of which have been discussed here. The only aspect I think is dubious is trying to prevent enforcement by Federal authorities (in the case of this bill, by making it a misdemeanor for them to do so). If anything, we set the stage for an actual court challenge, something that wouldn't happen if we weren't pushing the envelope.

History is filled with things that "couldn't happen". Sometimes, if only by shear numerical probability, they do. If it becomes law, we need to figure out how best to make it work.

Frank Ettin

May 14, 2013, 11:14 PM

I have considered responding several times. I don't doubt your expertise, but I do disagree with your attitude. One thing is certain; if we only continue to do do the same things (that is, to not attempt to push boundaries),..But my point has been that this isn't pushing the boundaries in any meaningful way. State nullification, as a legal matter, is a well proven losing proposition. It has been rejected by the U. S. Supreme Court consistently for 200 years.

...It's easy to get lost in "How things are done around here" and lose sight of "How things could be better"... The progress we've actually made in recent years has been made by people who understand and can operate effectively in the legal and political realities of our time.

...I don't believe that our system is operating according to what our Constitution mandates, and my choice is to either accept that or work to fix it. We need a more effective means of keeping Federal power within Constitutional limits, because what we have been doing is not enough....Believing as you do and wanting to improve things is fine. But that doesn't mean that state nullification is going to get you there. It sure hasn't worked that way in the past.

And if you want to try to fix things, you first need a solid grounding in reality and a thorough understanding of how things work. Just "doing something" isn't necessarily well calculated to achieve the results you might want.

Understand also that there are people who disagree with your vision. We live in a pluralistic, political world; and other people have their rights and interests which they will assert.

...I think this bill does good things, many of which have been discussed here. The only aspect I think is dubious is trying to prevent enforcement by Federal authorities...Yes, the Missouri legislation includes some very attractive state law reforms. It's the nullification of federal law business that will be going nowhere.

History is filled with things that "couldn't happen"....Such as? Anyway, history is filled with a lot of things. One thing our history is filled with is failure in the courts of attempts by states to nullify federal law.

Bruno2

May 14, 2013, 11:19 PM

Frank ,you are kind of a glass half empty guy.

Frank Ettin

May 14, 2013, 11:31 PM

Frank ,you are kind of a glass half empty guy. Not really. It's just in thirty years of practicing law I've found that non-critical optimism is a bad practice, especially if one wants to actually accomplish things for his clients.

In other news, I am guardedly optimistic about our chances to see some more favorable litigation results. We have some very good arguments building on Heller and McDonald.

Of course I can appreciate that many are impatient. But the time line goes with the process, and impatience isn't necessarily a good reason to pursue doubtful strategies.

And I must have some degree of optimism or I wouldn't be spending the time and effort I do bringing new shooters into the gun community. I work with a group of instructors who volunteer our time to teach monthly Basic Handgun classes, introducing annually around 100 (+/-) new people to our world of guns.

Lunie

May 15, 2013, 12:07 AM

But my point has been that this isn't pushing the boundaries in any meaningful way. State nullification, as a legal matter, is a well proven losing proposition. It has been rejected by the U. S. Supreme Court consistently for 200 years.

The progress we've actually made in recent years has been made by people who understand and can operate effectively in the legal and political realities of our time.

Believing as you do and wanting to improve things is fine. But that doesn't mean that state nullification is going to get you there. It sure hasn't worked that way in the past.

And if you want to try to fix things, you first need a solid grounding in reality and a thorough understanding of how things work. Just "doing something" isn't necessarily well calculated to achieve the results you might want.

Understand also that there are people who disagree with your vision. We live in a pluralistic, political world; and other people have their rights and interests which they will assert.

Yes, the Missouri legislation includes some very attractive state law reforms. It's the nullification of federal law business that will be going nowhere.

Such as? Anyway, history is filled with a lot of things. One thing our history is filled with is failure in the courts of attempts by states to nullify federal law.

I don't think I got my intent across. Blind optimism isn't a good thing, but neither is closed minded pessimism. You can think critically without letting those criticisms overwhelm the discussion. In this case, the ball is already in the air... There probably isn't much point in saying "It won't work, don't do it." Instead, we are left with "What will we do when it lands?".

It took us over 200 years for the courts to apply the 2nd Amendment to the States. (Ok, so obviously the 14th Amendment didn't exist all of that time, but I think you can understand what I mean.)

Sometimes radical changes seem less revolutionary after they have happened. I don't think the outcomes of Heller or McDonald were ever guaranteed.

"Nullification-lite" or non-enforcement, is not a dead horse. If anything, it seems to be a growing trend. And while full-on nullification may well have dim prospects, it does at least allow the states to challenge Federal authority, and ultimately, to do so in the courts (when a suit is filed.) Wouldn't you say?

monotonous_iterancy

May 15, 2013, 12:19 AM

What parts of this law are practical and not symbolic? If the nullification part is struck down, and it probably will be, then will it effect these statutes as well?

RPRNY

May 15, 2013, 01:17 AM

Regardless of how the Courts ' eventually rule on it - most likely against based on the "Supremacy Clause ;-) - those who keep citing this clause seem to miss that the supremacy is dependent on Federal laws being legal under the Constitution. Missouri's new law will be perfectly valid in nullifying Federal laws that are at odds with the Constitution. We know from Miller (1937) that the NFA (1934) has been deemed compatible with the Constitution. I do not recall if the Court has ruled specifically on the GCA (1968)? But Missouri's nullification of any Federal law that it deemed unconstitutional and that had not yet been found to the contrary by the Supreme Court would be juridically sound.

In any event, well done Missouri.

Sent from my Kindle Fire using Tapatalk 2

Frank Ettin

May 15, 2013, 01:29 AM

I don't think I got my intent across. Blind optimism isn't a good thing, but neither is closed minded pessimism....Look, this is not a matter of closed minded pessimism. This is a matter of professional assessment and knowledge. Don't forget that understanding these sorts of things, and successfully in the legal system accomplishing the purposes of my clients, is how I earned my living for thirty plus years. I have reason to "know when to hold 'em and know when to fold 'em" based on a lot of education, study and experience. And my understanding has been tested in the real world dealing with the very real wants, needs and problems of very real people.

...Instead, we are left with "What will we do when it lands?"...So understanding that it will land and how it is likely to land, and preparing for it, makes good sense. It won't help to be caught by surprise.

...I don't think the outcomes of Heller or McDonald were ever guaranteed...But a lot of study and thought by well educated and highly skilled people went into planning, setting up and arguing Heller and McDonald to maximize the likelihood of good results. Alan Gura and the legal team are consummate professionals well grounded in reality who would not have let themselves be carried aware on waves of wishful thinking.

And we can all be very thankful for that. Heller was "for all the marbles." I shudder to think what a "collective right" decision would have meant for the RKBA.

..."Nullification-lite" or non-enforcement, is not a dead horse. If anything, it seems to be a growing trend...Yes, indeed it is, and it can be a very useful tool. Mack and Printz v. United States, 521 U.S. 898 (1997) was that latest of cases clearly establishing that the federal government can not simply put local officials to work to further federal policy. So if the federal government wants to pursue a particular policy, it will need to be able to commit the resources to do it by itself or the policy must be one that State would be willing to voluntarily commit local resources to implementing.

It does has the effect of "raising the price of poker" for the federal government. It gives States a certain leverage.

...while full-on nullification may well have dim prospects, it does at least allow the states to challenge Federal authority, and ultimately, to do so in the courts (when a suit is filed.) Wouldn't you say?..But the answer there is still whether anything useful is likely to be accomplished. Are you suggesting it's good to fight the federal government in court just for the sake of the fight?

The political symbolism of this sort of nullification law might have the benefit of reminding be federal government that there is a growing schism in this country between federal and state interests and a basic philosophical division that needs some healing. But a court challenge might very well simply generate more law rejecting nullification, and that won't help anything. Any it could produce some other undesirable rulings -- such as a narrowing of the Tenth Amendment or a further expansion of the Commerce Clause (depending on the nature of the underlying dispute).

JRH6856

May 15, 2013, 01:31 AM

In fact, the U. S. Supreme Court has consistently rejected State attempts to nullify federal law.

Frank,

I know there have been several cases in which states attempted to nullify Supreme Court rulings which the Court ruled the states could not do, and several cases in which states attempted to pass and enforce state laws contrary to federal law which the Courts ruled the states can not do, but I am not aware that there has been any case in which the Court has actually ruled against a State's assertion of a 10th amendment right to nullify a legislative act or executive order by declaring such to be unconstitutional. I admit my research has not been exhaustive so I welcome any additional information and specific case references.

Daniel Webster, in his second reply to Hayne in 1830 did indeed outline the position that you have laid out. But for all of its clarity, it is only Webster's opinion, not the opinion of the Supreme Court. When SC nullified the tariffs of 1828 and 1832, Pres. Jackson expressed the same opinion and threatened to send federal troops to enforce the tariffs The crisis ended when Congress enacted a compromise tariff bill and the question of a state's authority to nullify federal law remained unresolved.

The current situation appears to me to be this:

The Constitution does not contain any clause providing that the states have the power to find federal laws unconstitutional. But it also does not contain any clause explicitly denying them that power. Thus, under the 10th amendment, that power may be reserved to the states...or it may not be.

Under the Supremacy Clause of Article VI, the Constitution and federal laws adopted in pursuance thereof are the "supreme law of the land…any thing in the constitution or laws of any state to the contrary notwithstanding."

But that only applies to "federal laws adopted in pursuance [of the Constitution]". IOW, laws that are constitutional. In exercising nullification, a state is saying that the law in unconstitutional and therefore is not protected by the Supremacy clause.

Granted, the Supreme Court is the final arbiter of constitutionality, but does that make it the only arbiter? SCOTUS and lower courts have held that states may not nullify a SCOTUS decision so that upholds SCOTUS as final arbiter, but just as a federal law has force of law until the Court rules otherwise, so does a state act of nullification. It nullifies federal law until SCOTUS rules otherwise or SCOTUS rules that a state may not nullify an act of Congress which it has yet to do.

Now, that is the basis (or at least, a basis) for state acts of nullification. Is it valid? I think not. I think Webster got it right in his 2nd reply to Hayne. But it would be helpful is SCOTUS would clearly confirm it.

Frank Ettin

May 15, 2013, 01:44 AM

...those who keep citing this clause seem to miss that the supremacy is dependent on Federal laws being legal under the Constitution. Missouri's new law will be perfectly valid in nullifying Federal laws that are at odds with the Constitution....No, we understand that. But as I, and others, have pointed out repeatedly, the question of the constitutionality of a federal law is one for the federal courts, not a state legislature.

In fact that very question was specifically addressed and decided against the State in Bush v. Orleans Parish School Board, 188 F. Supp. 916 (E.D. La. 1960), aff'd 364 U.S. 500 (1960).

MJU1983

May 15, 2013, 02:14 AM

I appreciate the debate.

That plus 200 years of U. S. Supreme Court precedent rejecting nullification. You, on the other hand, have not cited a single case.

I am citing history, and rightful remedies to Constitutional disputes from the horses mouth (Jefferson & Madison). You can't make claims ("provided for by the Founding Fathers" & "as the Founding Fathers intended" & "as the Founding Fathers provided in the Constitutions (Article III)" and then reject what they actually said, substituting what some Judge(s) said that you agree with more. If you are going to say the Founders asserted, believed in, intended, or agreed with the powers you claim SCOTUS discovered it has, I'm simply asking for some historical references from said Founders backing up those claims.

And I have. See the citations to U. S. Supreme Court cases rejecting nullification.
...
None of which has been upheld by the U. S. Supreme Court.
...
Phooey. What I have is over 200 years of Constitutional jurisprudence. In the real world that will be the basis upon which courts will be deciding future cases.
...
No, Jefferson was wrong about Marshall's opinion in Marbury being null and void. What has proven Jefferson wrong is the Marshall's opinion has continued to be applied in the deciding of subsequent cases. It in fact has helped shape the entire history of constitutional jurisprudence and has thus affected the ways in which courts have ruled, affecting the lives and property or real people in the real world, for over 200 years. That doesn't sound very "null and void" to me.

What if you're wrong, and Thomas Jefferson was right? Could that be a possibility?

I'm reminded of a quote:

"It wasn't the world being round that agitated people, but that the world wasn't flat. When a well-packaged web of lies has been sold gradually to the masses over generations, the truth will seem utterly preposterous and its speaker a raving lunatic." - Dresden James

In other words, the U. S. Supreme Court has never ruled in a way that would support your contentions. And thus your view rests entirely on wishful thinking.

I think we just disagree on SCOTUS being an infallible arbitrator. I know, and I think you know, Jefferson and Madison would strongly disagree that they are, or should be, the final word on "Constitutionality."

I should have addressed this earlier.

In any case, while Jefferson might have believed that, he was wrong. The U. S. Supreme Court indeed ruled that a State could not unilaterally secede from the Union (Texas v. White, et al, 74 U.S. 700, 19 L.Ed. 227, 7 Wall. 700 (1868)).
...
They probably don't. But that doesn't matter. Ultimately the rulings of the U. S. Supreme Court will be the final statements of the law.

Yes, the Court has upheld terrible laws, but --
It's not necessarily the province of a court to decide if a law is good or not. It's the province of a court to apply the law to decide the dispute before it. But the fact is that a great many improper, unwise, useless or dangerous things the government can do would be found by a court to be entirely constitutional. Being constitutional is not a guaranteed of wisdom.

The Supreme Court can, and has on rare occasion, reversed itself or carved out a better result by distinguishing a current case from a past, perhaps unsuitable, precedent.

All branches of government, both state and federal, can make bad decisions. Congress and state legislatures have passed lousy laws, and federal and state executives have done really dumb things. That's why we have elections and a system of checks and balances.

The bottom line is that you have laid out a lot of interesting historical information. But none of it really relates to how things are going to be worked out and decided here and now. Perhaps such things would be material in an alternate universe; but in our real world, not so much.

And you agree with that assertion by SCOTUS? That the states which created the Union cannot withdraw? What sense would that make? The Union that the states themselves created also has final say on its powers?

Again, we just disagree on history vs. accepted reality. I understand where you're coming from.

Do you really believe we have a system of checks and balances? And that voting matters? When is the last time your vote broke a tie or carried a particular issue?

I think I'll just leave it there. Again, I appreciate the debate. I am glad you found some of the historical information to be interesting. Cheers. :)

Frank Ettin

May 15, 2013, 02:17 AM

...The Constitution does not contain any clause providing that the states have the power to find federal laws unconstitutional. But it also does not contain any clause explicitly denying them that power. Thus, under the 10th amendment, that power may be reserved to the states...or it may not be...Now someone else gets to try to cite a case. So how about citing a case that in any way supports the notion that the Tenth Amendment in anyway suggests that a power to declare a federal law unconstitutional might be reserved to a State?

On the other hand, as set out in Bush v. Orleans Parish School Board, 188 F. Supp. 916 (E.D. La. 1960), aff'd 364 U.S. 500 (1960), 188 F. Supp. 916, at 924--926:...Assuming always that the claim of interposition is an appeal to legality, the inquiry is who, under the Constitution, has the final say on questions of constitutionality, who delimits the Tenth Amendment. In theory, the issue might have been resolved in several ways. But, as a practical matter, under our federal system the only solution short of anarchy was to assign the function to one supreme court. That the final decision should rest with the judiciary rather than the legislature was inherent in the concept of constitutional government in which legislative acts are subordinate to the paramount organic law, and, if only to avoid "a hydra in government from which nothing but contradiction and confusion can proceed," final authority had to be centralized in a single national court. The Federalist, Nos. 78, 80, 81, 82. As Madison said before the adoption of the Constitution: "Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated." The Federalist, No. 39.

And so, from the beginning, it was decided that the Supreme Court of the United States must be the final arbiter on questions of constitutionality. It is of course the guardian of the Constitution against encroachments by the national Congress. Marbury v. Madison, supra. But more important to our discussion is the constitutional role of the Court with regard to state acts. The original Judiciary Act of 1789 confirmed the authority of the Supreme Court to review the judgments of all state tribunals on constitutional questions. Act of Sept. 24, 1789, § 25, 1 Stat. 73, 85. See Martin v. Hunter's Lessee, supra; Worcester v. Georgia, 6 Pet. 515, 31 U.S. 515, 8 L.Ed. 483; Cohens v. Virginia, 6 Wheat. 264, 19 U.S. 264, 5 L.Ed. 257; Ableman v. Booth, 21 How. 506, 62 U.S. 506, 16 L.Ed. 169. Likewise from the first one of its functions was to pass on the constitutionality of state laws. Fletcher v. Peck, 6 Cranch 87, 10 U.S. 87, 3 L.Ed. 162; M'Culloch v. Maryland, 4 Wheat. 316, 17 U.S. 316, 4 L.Ed. 579. And the duty of the Court with regard to the acts of the state executive is no different. Sterling v. Constantin, 287 U.S. 378, 53 S.Ct. 190, 77 L.Ed. 375; Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5. The fact is that the Constitution itself established the Supreme Court of the United States as the final tribunal for constitutional adjudication. By definition, there can be no appeal from its decisions.

The initial conclusion is obvious enough. Plainly, the states, whose proceedings are subject to revision by the Supreme Court, can no more pretend to review that Court's decision on constitutional questions than an inferior can dispute the ruling of an appellate court. From this alone "it follows that the interpretation of the Fourteenth Amendment enunciated by the Supreme Court in the Brown case is the supreme law of the land, and that Art. VI of the Constitution makes it of binding effect on the States `any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.'" Cooper v. Aaron, supra, 358 U.S. 18, 78 S.Ct. 1410.

But this is not all. From the fact that the Supreme Court of the United States rather than any state authority is the ultimate judge of constitutionality, another consequence of equal importance results. It is that the jurisdiction of the lower federal courts and the correctness of their decisions on constitutional questions cannot be reviewed by the state governments. Indeed, since the appeal from their rulings lies to the Supreme Court of the United States, as the only authoritative constitutional tribunal, neither the executive, nor the legislature, nor even the courts of the state, have any competence in the matter. It necessarily follows that, pending review by the Supreme Court, the decisions of the subordinate federal courts on constitutional questions have the authority of the supreme law of the land and must be obeyed. Assuredly, this is a great power, but a necessary one. See United States v. Peters, supra, 5 Cranch 135, 136, 9 U.S. 135, 136.

Apprehensive of the validity of the proposition that the Constitution is a compact of states, interposition asserts that at least a ruling challenged by a state should be suspended until the people can ratify it by constitutional amendment. But this invocation of "constitutional processes" is a patent subterfuge. Unlike open nullification, it is defiance hiding under the cloak of apparent legitimacy. The obvious flaw in the argument lies in the unfounded insistence that pending a vote on the proposed amendment the questioned decision must be voided. Even assuming their good faith in proposing an amendment against themselves, the interpositionists want too much. Without any semblance of legality, they claim the right at least temporarily to annul the judgment of the highest court, and, should they succeed in defeating the amendment proposed, they presume to interpret that victory as voiding forever the challenged decision. It requires no elaborate demonstration to show that this is a preposterous perversion of Article V of the Constitution. Certainly the Constitution can be amended "to overrule" the Supreme Court. But there is nothing in Article V that justifies the presumption that what has authoritatively been declared to be the law ceases to be the law while the amendment is pending, or that the non-ratification of an amendment alters the Constitution or any decisions rendered under it.

The conclusion is clear that interposition is not a constitutional doctrine. If taken seriously, it is illegal defiance of constitutional authority. Otherwise, "it amounted to no more than a protest, an escape valve through which the legislators blew off steam to relieve their tensions." Shuttlesworth v. Birmingham Board of Education, D.C.N.D. Ala., 162 F.Supp. 372, 381. However solemn or spirited, interposition resolutions have no legal efficacy. ...

And as the Supreme Court stated (364 U.S. 500, at 500--501) affirming Bush:...PER CURIAM. These are motions for stay of an injunction by a three-judge District Court which nullified a series of enactments of the State of Louisiana. The scope of these enactments and the basis on which they were found in conflict with the Constitution of the United States are not matters of doubt. The nub of the decision of the three-judge court is this: 'The conclusion is clear that interposition is not a constitutional doctrine. If taken seriously, it is illegal defiance of constitutional authority.' Bush v. Orleans Parish School Board (United States v. State of Louisiana), D.C., 188 F.Supp. 916, 926. The main basis for challenging this ruling is that the State of Louisiana 'has interposed itself in the field of public education over which it has exclusive control.' This objection is without substance, as we held, upon full consideration, in Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5. The others are likewise without merit. Accordingly, the motions for stay are denied...

Frank Ettin

May 15, 2013, 02:28 AM

I am citing history, and rightful remedies to Constitutional disputes from the horses mouth (Jefferson & Madison). You can't make claims ("provided for by the Founding Fathers" & "as the Founding Fathers intended" & "as the Founding Fathers provided in the Constitutions (Article III)" and then reject what they actually said, substituting what some Judge(s) said that you agree with more....I'm not citing history. I'm not arguing history. I'm citing law, and arguing law.

These matters will be decided not by history, but rather by law.

...What if you're wrong, and Thomas Jefferson was right? Could that be a possibility?

I'm reminded of a quote:

"It wasn't the world being round that agitated people, but that the world wasn't flat. When a well-packaged web of lies has been sold gradually to the masses over generations, the truth will seem utterly preposterous and its speaker a raving lunatic." ...As demonstrated by over 200 years of constitutional jurisprudence, no. The fact is that Marbury as been a part of the law and had a real effect on the real world for some 200 years. On the the basis of that matter of fact, any assertion that Marbury is "null and void" is preposterous.

And furthermore your attempt to analogize the question of the validity of Marbury to the belief that the earth was flat is utterly specious.

The shape of the earth is a matter of objective, physical reality.

JRH6856

May 15, 2013, 02:31 AM

Now someone else gets to try to cite a case. So how about citing a case that in any way supports the notion that the Tenth Amendment in anyway suggests that a power to declare a federal law unconstitutional might be reserved to a State?

I can't cite a case on a question that has yet to be heard. That is my question. Has SCOTUS ever actually ruled on this in re a law that has not been previously subjected to judicial review by SCOTUS?

On the other hand, as set out in Bush v. Orleans Parish School Board, 188 F. Supp. 916 (E.D. La. 1960), aff'd 364 U.S. 500 (1960), 188 F. Supp. 916, at 924--926:

But Bush v Orleans Parish SB is yet another case where a state attempted to nullify a previous SCOTUS ruling (Brown v. BOE and actually, it was a case of interposition, not nullification.) There is no question that SCOTUS has addressed its own supremacy as final arbiter of law so this does not answer the question I posed regarding state power to nullify law which has not been the subject of prior SCOTUS review.

MJU1983

May 15, 2013, 02:45 AM

I'm not citing history. I'm not arguing history. I'm citing law, and arguing law.

These matters will be decided not by history, but rather by law.

But that's not what I asked, nor is it what you claimed. FWIW I think history, especially constitutional history, is more important than studying case law.

As demonstrated by over 200 years of constitutional jurisprudence, no. The fact is that Marbury as been a part of the law and had a real effect on the real world for some 200 years. On the the basis of that matter of fact, any assertion that Marbury is "null and void" is preposterous.

And furthermore your attempt to analogize the question of the validity of Marbury to the belief that the earth was flat is utterly specious.

The shape of the earth is a matter of objective, physical reality.

You, and most lawyers, put a lot of faith in that case. What exactly does obiter dictum mean?

It was just a quote. That's how I feel. ;)

JRH6856

May 15, 2013, 02:57 AM

FWIW I think history, especially constitutional history, is more important than studying case law.

Not in court it's not. And more issues are settled in court than in history class.

MJU1983

May 15, 2013, 03:08 AM

Not in court it's not. And more issues are settled in court than in history class.

Unfortunately you are correct. :(

Frank Ettin

May 15, 2013, 03:14 AM

...I know, and I think you know, Jefferson and Madison would strongly disagree that they are, or should be, the final word on "Constitutionality....No, actually I don't know anything of the sort, at least with regard to Madison's views. In fact, see the lengthy portion of the court of appeal's decision in Bush, 188 F. Supp. 916, where the court noted, at 924:...As Madison said before the adoption of the Constitution: "Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated." The Federalist, No. 39....

...FWIW I think history, especially constitutional history, is more important than studying case law...Think what you like. But your thinking something doesn't necessarily mean anything.

Decisions will be made by courts based on established legal principles, not your view of history. If one wants to anticipate how courts will decide matters in the future, he must study and understand how courts have decided matters in the past.

...I can't cite a case on a question that has yet to be heard. That is my question. Has SCOTUS ever actually ruled on this in re a law that has not been previously subjected to judicial review by SCOTUS?...Osborn v. Bank of the United States, 22 U.S. 738 (1824) ruling against the State of Ohio's attempt to levy a tax on the Bank of the United States and Prigg v. Pennsylvania, 41 U.S. 539 (1842) finding, in effect, that a Pennsylvania law in conflict with the federal Fugitive Slave Act was invalid come to mind.

Gaiudo

May 15, 2013, 05:09 AM

These matters will be decided not by history, but rather by law.

Says the lawyer, relating to the opinions of dead lawyers, all of whom operate as if the courts are the final arbitrer. An important role, no doubt, whilst the compact prevails. However, lest they forget that they are not the final arbitrer, and are only given the opportunity by the consent of the governed, it is indeed key to note the implied double edge of Madison's quote above:

"Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact

Lawyers are valuable until the compact collapses. Such is, and has always been the way of the world. If Missouri succeeds in offering a gentle reminder of this 'history lesson' all the better.

JRH6856

May 15, 2013, 11:20 AM

Osborn v. Bank of the United States, 22 U.S. 738 (1824) ruling against the State of Ohio's attempt to levy a tax on the Bank of the United States and Prigg v. Pennsylvania, 41 U.S. 539 (1842) finding, in effect, that a Pennsylvania law in conflict with the federal Fugitive Slave Act was invalid come to mind.

But again, from what I can find, Osborn is not a case in which a state sought explicitly to nullify an act of Congress. And the same in Prigg. The state law did not explicitly nullify federal law, it just contradicted it as you noted. Furthermore, it was the Constitution itself (Article IV, Section 2, Clause 2), as well as the Fugitive Slave Act, that Pennsylvania law contradicted. Because of Article IV, Section 2, Clause 2, the constitutionality of the Fugitive Slave Act was clear, even if the morality was questionable.

303tom

May 15, 2013, 11:22 AM

Frank Ettin,

I have considered responding several times. I don't doubt your expertise, but I do disagree with your attitude. One thing is certain; if we only continue to do do the same things (that is, to not attempt to push boundaries), we will continue to get the same result. It's easy to get lost in "How things are done around here" and lose sight of "How things could be better".

"We've been making sand by banging two rocks together for generations." Well, does that mean it is the "right" or "best" way to do it, or are we just doing it as a matter of precedent? I don't believe that our system is operating according to what our Constitution mandates, and my choice is to either accept that or work to fix it. We need a more effective means of keeping Federal power within Constitutional limits, because what we have been doing is not enough. We need a more effective check on Federal encroachment. Is it nullification? Maybe, or maybe not. A repository of absolute foreknowledge, I am not.

I think this bill does good things, many of which have been discussed here. The only aspect I think is dubious is trying to prevent enforcement by Federal authorities (in the case of this bill, by making it a misdemeanor for them to do so). If anything, we set the stage for an actual court challenge, something that wouldn't happen if we weren't pushing the envelope.

History is filled with things that "couldn't happen". Sometimes, if only by shear numerical probability, they do. If it becomes law, we need to figure out how best to make it work.
I still say we need a like BUTTON................

Frank Ettin

May 15, 2013, 11:49 AM

But again, from what I can find, Osborn is not a case in which a state sought explicitly to nullify an act of Congress...As is often the case, it's possible to hypothesize a particular set of facts that hasn't precisely been addressed by a court. The bottom line, however, is we have very robust U. S. Supreme Court precedent supporting the Supremacy Clause, and States have not had any real success nullifying federal law.

If the goal of a State is to test the constitutionality of a federal law, there are other avenues available. A State, for example, could challenge the constitutionality of a federal statute by filing a lawsuit in federal court seeking to declare the federal law unconstitutional. See "Why Virginia's Challenges to the Patient Protection and Affordable Care Act Did Not Invoke Nullification," 46 U. Richmond Law Review 917, 949 (2012) (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2113934). Such an approach appropriately recognizes the final jurisdiction of the federal courts to decide the question.

Or as Madison wrote in Federalist 39 (http://www.constitution.org/fed/federa39.htm) (since MJU1983 is so fond of the "history" dimension):...It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government...

JRH6856

May 15, 2013, 12:22 PM

As is often the case, it's possible to hypothesize a particular set of facts that hasn't precisely been addressed by a court. The bottom line, however, is we have very robust U. S. Supreme Court precedent supporting the Supremacy Clause, and States have not had any real success nullifying federal law.

Yes, I understand that. As I see it, the cases I have found or been referred to do two things:

1. Confirm SCOTUS as final arbiter or matters of law and constitutionality

2. Confirm supremacy of federal law enacted persuant to the Constitution.

And I am not questioning either of those. But they do not address the power of the state to act as an intermediate arbiter of constitutionality. Previous state actions in this vein have been rendered moot by legislative compromise before reaching SCOTUS so there has never been a ruling on this question, the most famous being the Nullification Crises of 1832.

If the goal of a State is to test the constitutionality of a federal law, there are other avenues available. A State, for example, could challenge the constitutionality of a federal statute by filing a lawsuit in federal court seeking to declare the federal law unconstitutional. See "Why Virginia's Challenges to the Patient Protection and Affordable Care Act Did Not Invoke Nullification," 46 U. Richmond Law Review 917, 949 (2012) (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2113934). Such an approach appropriately recognizes the final jurisdiction of the federal courts to decide the question.

So in absence of a ruling to the contrary, legislative nullification, while not the most desirable or noncontroversial method, appears to remain a viable method of getting the issue to SCOTUS.

If SCOTUS rules against the states power to invoke legislative nullification, then the states have the option of invoking Jackson's response to Worcester v. Georgia: "John Marshall has made his decision; now let him enforce it!" (Of course, as chief executive, Jackson was the enforcement arm of the Court, an advantage the states do not have.)

316SS

May 15, 2013, 01:15 PM

These matters will be decided not by history, but rather by law.

Says the lawyer, relating to the opinions of dead lawyers, all of whom operate as if the courts are the final arbitrer. An important role, no doubt, whilst the compact prevails. However, lest they forget that they are not the final arbitrer, and are only given the opportunity by the consent of the governed, it is indeed key to note the implied double edge of Madison's quote above:

Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact

Lawyers are valuable until the compact collapses. Such is, and has always been the way of the world. If Missouri succeeds in offering a gentle reminder of this 'history lesson' all the better.

Luckily for us, our Founders, many lawyers themselves, put more stock in history than The Law. Otherwise, we would still be British subjects, since rebellion was, like, illegal and stuff.

Frank Ettin

May 15, 2013, 01:35 PM

...But they do not address the power of the state to act as an intermediate arbiter of constitutionality...In that sense, each individual is an "intermediate arbiter" of the constitutionality of any law he disagrees with -- at least as long as he gets away with it. But there's a difference between getting away with something and being correct. One can really only be "correct" when his actions pass whatever in the context the final test might be. Here the final test is in the U. S. Supreme Court, and the core issue is the likelihood of surviving that particular test.

...So in absence of a ruling to the contrary, legislative nullification, while not the most desirable or noncontroversial method, appears to remain a viable method of getting the issue to SCOTUS... As a matter of sound litigation tactic, it really is not. If the goal is to actually test the constitutionality of a federal law, there are far better ways to go about it.

One key to a good "test case" is that it has a narrow focus so you can actually test what you want to test, especially if what you want to test is controversial. Often a court will be able to decide a dispute on peripheral or procedural issues and thus avoid grappling with a more significant or controversial issue.

The proper end to litigation is a final decision resolving the dispute -- not necessarily clarification of a difficult point of law. If what you're trying to do is get that difficult point of law clarified, you need to set up the litigation so the only way the dispute can be decided is by doing so. That's how both Heller and McDonald were approached.

But litigation arising from an attempt of a State to by statute nullify federal law is likely to bring in all manner of extraneous issues. It's going to most likely focus on the nullification issues.

...If SCOTUS rules against the states power to invoke legislative nullification, then the states have the option of invoking Jackson's response to Worcester v. Georgia: "John Marshall has made his decision; now let him enforce it!"...Really now? Have you forgotten --

in 1960 when U. S. Marshals escorted a black girl to school in New Orleans, Louisiana.

in 1963 when George Wallace attempted to block the desegregation of the University of Alabama. He was confronted by federal marshals, Deputy Attorney General Nicholas Katzenbach, and the Alabama Army National Guard and forced to step aside.

in 1963 when Wallace again attempted to stop four black students from enrolling in segregated elementary schools in Huntsville. Then the intervention of a federal court in Birmingham got the four students enrolled.

It would be one thing for a federal executive to decline to enforce an order of a federal court (which appears to have happened only the one time you refer to), and another thing entirely for a federal executive to permit a state authority to flout an order of a federal court.

Frank Ettin

May 15, 2013, 01:38 PM

Luckily for us, our Founders, many lawyers themselves, put more stock in history than The Law. Otherwise, we would still be British subjects, since rebellion was, like, illegal and stuff.It depends on whether the goal is to preserve our nation or destroy it. Which do you want to do?

45_auto

May 15, 2013, 02:42 PM

Based on the recent actions by several states (Missouri the latest), it appears to me that those who would pass and attempt to enforce laws at the national level which encroach upon constitutional rights are the ones on a path to destroy it.

316SS

May 15, 2013, 03:25 PM

It depends on whether the goal is to preserve our nation or destroy it. Which do you want to do?

That is a false choice. My goal is to preserve the natural rights and liberty of myself and my fellows, the same as our Founders.

“Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.” -Frederic Bastiat

Our system of laws was conceived for the purpose of protecting individual liberty. If it no longer serves that purpose, its value must be questioned.

“The natural progress of things is for liberty to yield and government to gain ground.”

"Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny." -Thomas Jefferson

cwo2lt

May 15, 2013, 04:01 PM

Really now? Have you forgotten --

in 1960 when U. S. Marshals escorted a black girl to school in New Orleans, Louisiana.

in 1963 when George Wallace attempted to block the desegregation of the University of Alabama. He was confronted by federal marshals, Deputy Attorney General Nicholas Katzenbach, and the Alabama Army National Guard and forced to step aside.

in 1963 when Wallace again attempted to stop four black students from enrolling in segregated elementary schools in Huntsville. Then the intervention of a federal court in Birmingham got the four students enrolled.

Interesting. We really are sheep aren't we? If the citizens of LA or AL truly believed in segregation seems to me the Marshals would have been waaay outnumbered.

There are a lot of voices, here and elsewhere, that claim they would fight to the death but how many really would? Would you really shoot Deputy Dawg, who's son plays on your sons Little League team, if he knocked on the door and said he was there to take your gun?

MO can pass all the laws they want but if they can't back them up they're just making love to themselves.

CZguy

May 15, 2013, 04:28 PM

MO can pass all the laws they want but if they can't back them up they're just making love to themselves.

I sure wish that you would phrase that differently.

JRH6856

May 15, 2013, 04:58 PM

Really now? Have you forgotten --

...

It would be one thing for a federal executive to decline to enforce an order of a federal court (which appears to have happened only the one time you refer to), and another thing entirely for a federal executive to permit a state authority to flout an order of a federal court.

No, I haven't forgotten, which is why I said the states would not have the advantage. (And if you haven't noticed, I have consistently maintained that SCOTUS should be the final arbiter... and is, short of rebellion. And no, I'm not advocating rebellion. :rolleyes:

x_wrench

May 15, 2013, 05:03 PM

now that is cool! if we get enough states to do this, the feds, and the anti gun movement will be forced to back down. like it or not. personally, :):):):):

JRH6856

May 15, 2013, 05:21 PM

Our system of laws was conceived for the purpose of protecting individual liberty. If it no longer serves that purpose, its value must be questioned.

The Constitution is based in the theory of natural rights put forth by primarily by John Locke among others. The ideas put forth depend on a deontological system of ethics in which each individual has a duty to respect and obey a higher authority than themselves, be it God, Divine Providence, Nature or a Constitution and the individual has a duty and responsibility to respect and defend the natural rights of every individual. An action is "good" only to the extent that it protects or does not infringe upon natural rights.

Modern Progressivism, for the most part, is based in a teleological system of ethics which denies the existence of natural rights or natural law. The most common form is Consequentialism as expressed by Jeremy Bentham (who penned the English opposition to the Declaration of Independence) and the Utilitarianism of John Stuart Mill. Under this system, an action is good if it produces "the greatest good for the greatest number" which means rights of individuals or minorities may be sacrificed for the good of the majority. But that is acceptable because the good that is achieved justifies whatever means may be necessary to achieve it.

The ethics of an individual are deeply personal--so much so that most people rarely examine or question their ethics, they just act on them. A person really can't change their ethics without fundamentally changing the way they look at the world they live in. This is something that few people do consciously or willingly.

As a nation, we are in the midst of a conflict of ethics in which each side sees the actions of the other as clearly unethical and thus unacceptable and not subject to compromise.

We do live in interesting times.

JRH6856

May 15, 2013, 05:23 PM

now that is cool! if we get enough states to do this, the feds, and the anti gun movement will be forced to back down. like it or not. personally, :):):):):
Or they will forced to respond with the degree of force necessary to enforce the law and the Constitution. See 1861-1865. :(:(:(:(

Gaiudo

May 15, 2013, 05:40 PM

It depends on whether the goal is to preserve our nation or destroy it. Which do you want to do?

But of course those two horns present a false dilemma. The nation serves as the handmaiden to liberty, and as such Reformata, Semper Reformanda comes into play. When through corruption, entropy, etc. the laws degrade to a level that requires renovation, the status quo of the legal process may not serve the purpose. That's just the way such things work in history.

Hopefully we can do what needs done through the lawyers.

zxcvbob

May 15, 2013, 07:29 PM

Actually the USSC does not have the final say, the states have a trump card -- they can convene a Constitutional Convention. God help us if they ever play that card, but maybe just its existence serves as a deterrent to an out-of-control court?

316SS

May 15, 2013, 09:12 PM

As a nation, we are in the midst of a conflict of ethics in which each side sees the actions of the other as clearly unethical and thus unacceptable and not subject to compromise.

True, and ongoing demographic and cultural shifts (think urbanization) seem to favor the wrong (IMO) side. We are fighting a cultural war of attrition.

Frank Ettin

May 15, 2013, 09:24 PM

Based on the recent actions by several states (Missouri the latest), it appears to me that those who would pass and attempt to enforce laws at the national level which encroach upon constitutional rights are the ones on a path to destroy it. Throughout our history there have been people who have complained that the actions of the federal government were inimical to the founding principles of our Nation and inconsistent with the proper scope of government. Throughout our history there have been people who have complained that the actions of state governments were inimical to the founding principles of our Nation and inconsistent with the proper scope of government.

That sort of friction will be common to any organized society. Our Founders left us with a particular framework and process (a federal system, checks and balances and separation of powers) for managing that friction.

No, I haven't forgotten, which is why I said the states would not have the advantage....Yes, I noticed that; and of course that makes your reference to Andrew Jackson a red herring.

Actually the USSC does not have the final say, the states have a trump card -- they can convene a Constitutional Convention...Which is the ultimate game changer. If that ever were to come to pass, I doubt we'd be happy with the result.

...maybe just its existence serves as a deterrent to an out-of-control court? I somehow doubt that. In general, judges see the function of the judicial process to be deciding the disputes before the court on the basis of the ground rules applicable at the time. The power inherent to the legislative function to change those ground rules is accepted as a given.

In fact, it's not at all uncommon for the legislature to use its power to avoid what is seen as an undesirable result of a judicial decision. A recent example was the case of Kelo v. City of New London, 545 U.S. 469 (2005). It was a ruling on a technical point of eminent domain law (specifically sustaining a state action against a challenge under the "takings" clause of the Fifth Amendment applied to the States through the 14th Amendment and the meaning of "public use"). The result was found to be unsatisfactory by many. As a consequence, the legislatures of 42 States revised those States' eminent domain laws to avoid a Kelo result.

JRH6856

May 15, 2013, 09:30 PM

Yes, I noticed that; and of course that makes your reference to Andrew Jackson a red herring.

Herring makes good chum for the sharks...;)

316SS

May 15, 2013, 09:35 PM

Throughout our history there have been people who have complained that the actions of the federal government were inimical to the founding principles of our Nation and inconsistent with the proper scope of government. Throughout our history there have been people who have complained that the actions of state governments were inimical to the founding principles of our Nation and inconsistent with the proper scope of government.

That sort of friction will be common to any organized society. Our Founders left us with a particular framework and process (a federal system, checks and balances and separation of powers) for managing that friction.

Implying that the government can legitimately claim that they are not tyrannical, by definition, because they say so. So long as the forms are followed.

Frank Ettin

May 15, 2013, 09:58 PM

Throughout our history there have been people who have complained that the actions of the federal government were inimical to the founding principles of our Nation and inconsistent with the proper scope of government. Throughout our history there have been people who have complained that the actions of state governments were inimical to the founding principles of our Nation and inconsistent with the proper scope of government.

That sort of friction will be common to any organized society. Our Founders left us with a particular framework and process (a federal system, checks and balances and separation of powers) for managing that friction.

Implying that the government can legitimately claim that they are not tyrannical, by definition, because they say so. So long as the forms are followed. What I described is reality.

Often those who tend to be the most dissatisfied with the way the process is working are forgetting their own role in the process. We select the government. How effective are you at influencing your neighbors, the people in your community, your co-workers, etc., to join you in selecting representatives who will further the goals and values important to you?

If you think the government is tyrannical, your neighbors, the people in your community, your co-workers, etc., must be helping to put tyrants into public office. What are you doing to change that?

316SS

May 15, 2013, 10:21 PM

Often those who tend to be the most dissatisfied with the way the process is working are forgetting their own role in the process. We select the government. How effective are you at influencing your neighbors, the people in your community, your co-workers, etc., to join you in selecting representatives who will further the goals and values important to you?

If you think the government is tyrannical, your neighbors, the people in your community, your co-workers, etc., must be helping to put tyrants into public office. What are you doing to change that?

Hah! When in doubt, attack, eh? :D Don't try and pin this on me, man, I live in California. I have a decidedly uphill battle winning hearts and minds, as you well know.

Frank Ettin

May 15, 2013, 10:34 PM

Often those who tend to be the most dissatisfied with the way the process is working are forgetting their own role in the process. We select the government. How effective are you at influencing your neighbors, the people in your community, your co-workers, etc., to join you in selecting representatives who will further the goals and values important to you?

If you think the government is tyrannical, your neighbors, the people in your community, your co-workers, etc., must be helping to put tyrants into public office. What are you doing to change that?

Hah! When in doubt, attack, eh? :D Don't try and pin this on me, man, I live in California. I have a decidedly uphill battle winning hearts and minds, as you well know.Again, I'm just stating reality.

It might be an uphill battle, but it's the battle we have. Participate or sit it out and complain. Your choice.

CZguy

May 16, 2013, 12:05 AM

As a nation, we are in the midst of a conflict of ethics in which each side sees the actions of the other as clearly unethical and thus unacceptable and not subject to compromise.

We do live in interesting times.

I think that you really nailed it with this post. I don't have any solutions, but agree that the times are getting more interesting daily.

316SS

May 16, 2013, 12:13 AM

Participate or sit it out and complain. Your choice.

Another false choice. I choose to participate and complain.;)

pseudonymity

May 16, 2013, 12:35 AM

If you think the government is tyrannical, your neighbors, the people in your community, your co-workers, etc., must be helping to put tyrants into public office. What are you doing to change that?

Does inciting the passions and strengthening the resolve of those who would stand by you and use extraordinary measures to preserve their liberties count?

All the "from my cold, dead hands" bumper stickers are wonderful, but at some point you have to draw a line and give proof to your beliefs. It may be that the time for an accounting of the commitment of true liberty lovers is closer than some people would hope.

Frank Ettin

May 16, 2013, 12:59 AM

If you think the government is tyrannical, your neighbors, the people in your community, your co-workers, etc., must be helping to put tyrants into public office. What are you doing to change that?

Does inciting the passions and strengthening the resolve of those who would stand by you and use extraordinary measures to preserve their liberties count?

All the "from my cold, dead hands" bumper stickers are wonderful, but at some point you have to draw a line and give proof to your beliefs. It may be that the time for an accounting of the commitment of true liberty lovers is closer than some people would hope. No, actually it doesn't count.

Sam1911 probably said it best in this post (http://www.thehighroad.org/showpost.php?p=8926723&postcount=76) in another thread:Howling for war is the fool's quick impatient solution instead of the day by day slogging against the lies and manipulations of the Antis.Agreed. We clamor for revolution because we have the fool's belief that it is the easier path to our utopia, and because we lack the dedication and courage to WORK, and the patience to let the work we do accomplish bring about change in an orderly way.

If revolution ever comes again, what follows will be nothing like what we claim to treasure so deeply. It isn't a "reset" button. It's a "DESTRUCT" button.

JRH6856

May 16, 2013, 01:11 AM

I think that you really nailed it with this post. I don't have any solutions, but agree that the times are getting more interesting daily.
Thank you. :o

The only solution is that one school of ethics or the other achieve dominance.

The difficulty of our present solution is that neither school has a clear majority. This country started out with deontological ethics in clear dominance. Teleological ethics began to take root in the 1830s-1840s and has been growing gradually ever since. It took 150 years or so to reach parity. If it keeps growing, it will eventually achieve dominance, but it will take some time. Unfortunately, it seems to have control of the education system which gives it a big advantage.

45_auto

May 16, 2013, 08:06 AM

That sort of friction will be common to any organized society. Our Founders left us with a particular framework and process (a federal system, checks and balances and separation of powers) for managing that friction.

That's true. Unfortunately, that framework and process sometimes doesn't provide suitable tools for managing the friction. Once one side is pushed far enough, more drastic tools for resolving the friction unfortunately come into play. See US History, 1861-1865.

"Those who don't know history are destined to repeat it." - Edmund Burke

Manco

May 16, 2013, 11:48 AM

Modern Progressivism, for the most part, is based in a teleological system of ethics which denies the existence of natural rights or natural law. The most common form is Consequentialism as expressed by Jeremy Bentham (who penned the English opposition to the Declaration of Independence) and the Utilitarianism of John Stuart Mill. Under this system, an action is good if it produces "the greatest good for the greatest number" which means rights of individuals or minorities may be sacrificed for the good of the majority. But that is acceptable because the good that is achieved justifies whatever means may be necessary to achieve it.

That's right, and these days it's even more dangerous because it doesn't require any practical, physical benefit in order to be justified. If it makes people feel like they're doing something--any old thing--for a well-intentioned cause, and this makes the majority of people feel good about it, regardless of the actual tangible result, then even the incremental erosion of our rights is considered justified in the view of many. The irony here is that among all of our rights, the RKBA has always been relatively teleological (with the right to self-defense being its deontological basis), but more and more it seems that making people feel a certain way takes precedence over hard reality.

This is not only a danger in and of itself, but in how very susceptible it is to abuse, ultimately to the point where there is a slippery slope of trading rights for the mere perception of improvement in our lives, all managed by an increasingly dominant national government. In such a state, this country would eventually become unrecognizable--fundamentally changed into a completely different type of country, which is expressly what Obama, for example, based his campaign on, and what the electorate voted for. :( It's hardly all about him, though--this battle is on many fronts, starting with the education of our youth.

JRH6856

May 16, 2013, 12:54 PM

^^^ Yes. This is the slippery slope we are sliding down.

J-Bar

May 16, 2013, 06:06 PM

I read this complete thread with great relish. I am not a lawyer. I have been a judge at debate tournaments, and I really enjoy witnessing well-reasoned arguments on an important issue.

I know that good lawyers are trained to see both sides, and be able to argue both sides of an issue.

Mr. Ettin, if you care to, as this thread's chief critic of Missouri's recently passed law, would you switch sides for a moment and present evidence or argument in its favor? I respect your experience and insight, and would like to make use of it.

I offer the same challenge to those who have been presenting opinions opposing Mr. Ettin's, if you care to. This has been a delightful discussion to read, and I hate to see it come to an end.

PaisteMage

May 16, 2013, 06:27 PM

America to my ancestors who came here on the boat, Ellis Island, dreamed of these possibilities. Freedom to move, choose, and having the sky be the limit.

Some people are all REVOLUCION! In heart I agree. States HAVE to show the federal government what the Constitution really means.

Not trying to be political so Ill offend both parties(of which I am neither). The last TWO presidents have done treacherous things to dismantle our rights and what OUR country was founded upon.

I don't care if ANY of you are of different political persuasion, different religious views than myself, or even ethnicity. I judge people by whats in their heart and mind. I am good friends with several people even though we steadfastly disagree on "issues." I would still stand next to you if the horrible and hopefully impossible revolution did happen, because we fight under the same cause: Liberty and freedom.

These actions taken by MO and hopefully by many others remind me of being an American, what it really means to be. When I hold my hand on my heart I salute people such as this, my armed service family members and friends, and all who serve currently, and anyone who stands up for what our country MEANS.

America was founded on these types of actions and it is a shame that it is considered "rebellious" ,almost, in these times to stand up for what is given to us by birth.

For the record this is a great move by politicians who actually DO something.

Lunie

May 16, 2013, 06:50 PM

I read this complete thread with great relish. I am not a lawyer. I have been a judge at debate tournaments, and I really enjoy witnessing well-reasoned arguments on an important issue.

I know that good lawyers are trained to see both sides, and be able to argue both sides of an issue.

Mr. Ettin, if you care to, as this thread's chief critic of Missouri's recently passed law, would you switch sides for a moment and present evidence or argument in its favor? I respect your experience and insight, and would like to make use of it.

I offer the same challenge to those who have been presenting opinions opposing Mr. Ettin's, if you care to. This has been a delightful discussion to read, and I hate to see it come to an end.
Thank you, and well said Sir.

316SS

May 16, 2013, 08:22 PM

America was founded on these types of actions and it is a shame that it is considered "rebellious" ,almost, in these times to stand up for what is given to us by birth.

For the record this is a great move by politicians who actually DO something.

It's been put forth that they didn't really DO anything. Frank Ettin claims that this legislation has no legal legitimacy, and who am I to argue that point with him? I believe he is correct. However, what I don't agree is that because it has no legal legitimacy, it is therefore worthless. Civil disobedience and non-compliance with unconstitutional laws have no legal legitimacy, but they have a long and glorious history in our country. Frank may say that we don't each have the luxury of judging the Constitutionality of laws, but that is because he is a lawyer and has a legal perspective. From a ethical and philosophical perspective, we each have to answer to our conscience, knowing that our actions potentially have very real personal, legal consequences.

The Civil Rights movement started when brave individuals flouted laws that they saw, as do the vast majority of us today, as immoral. Working outside the legal framework NEED NOT equate to pressing the "DESTRUCT" button.

JRH6856

May 16, 2013, 08:31 PM

The Civil Rights movement started when brave individuals flouted laws that they saw, as do the vast majority of us today, as immoral. Working outside the legal framework NEED NOT equate to pressing the "DESTRUCT" button.

There is just something about armed non-violent disobedience... :uhoh:

316SS

May 16, 2013, 08:42 PM

There is just something about armed non-violent disobedience... :uhoh:

Here's an example, from north of the border: many Canadians did not comply with Canada's long gun registry, and after about a decade, during which a few individuals felt the consequences, the government admitted defeat.

Frank Ettin

May 16, 2013, 09:20 PM

...Mr. Ettin, if you care to, as this thread's chief critic of Missouri's recently passed law, would you switch sides for a moment and present evidence or argument in its favor?...No thanks. I'll pass.

...Frank Ettin claims that this legislation has no legal legitimacy, and who am I to argue that point with him? I believe he is correct. However, what I don't agree is that because it has no legal legitimacy, it is therefore worthless...Well, I've never said it was worthless. I've mentioned that it can have symbolic and political value. I've also mentioned that the legislation included some desirable changes to current Missouri state law.

My point through all of this has been that this legislation does not sweep away the application of federal gun laws in Missouri as some seem to believe or wish. Any Missouri resident thinking of cobbling together a machine gun and finding refuge in this law from prosecution under the NFA would be well advised to reconsider that plan.

Instead, consider how to make the best political use of the strong support the law has garnered.

...The Civil Rights movement started when brave individuals flouted laws that they saw, as do the vast majority of us today, as immoral. Working outside the legal framework NEED NOT equate to pressing the "DESTRUCT" button....Civil disobedience is one thing, but rebellion is another. And if civil disobedience is really on the table, remember that to be truly effective it must be more than just openly violating the law. I discussed that subject in this post (http://www.thehighroad.org/showpost.php?p=8614413&postcount=6) in another thread:I was recently chastised for encouraging illegal activity on this board. My wording was thus (omitting the vulgarity): "They cannot pass legislation infringing the RKBA. If they do, it is illegal and we need to let them know that it will not be tolerated or followed." ....I will admit from a certain point of view that what I said does indeed encourage the violations of laws that individuals deem unconstitutional. ....Historical figures such as Susan B Anthony, Rosa Parks, and Dr Martin Luther king used civil disobedience to non violently overturn unconstitutional laws. We regard them as heroes, yet they were very clearly criminals by definition. ....a later surge of such criminal activity served to sway the decision of the courts in the opposite direction. ....history demonstrates the very effective technique of non violent civil disobedience in large numbers as an arguably superior method of reform. Why then, is such discussion shunned and prohibited by this site as verboten? ......this thread was not meant to be about how to go about it, or to organize or advocate for such practice. It is meant as a question: why are these discussions prohibited and what is the reasoning behind disallowing the discussion of such activism?...

The short answer is that you were not advocating or opening discussion of civil disobedience. You were simply advocating violating the law.

You had written:...They cannot pass legislation infringing the RKBA. If they do, it is illegal and we need to let them know that it will not be tolerated or followed...And that in good English is simply advocating threating to refuse to abide by laws we don't like. And you also wrote (http://www.thehighroad.org/showpost.php?p=8606919&postcount=62):Last time I checked, there were illegal laws all over this country that infringe upon an enumerated constitutional right to bear arms.

And there are free men all over this country that refuse to abide by them. Their numbers are growing.So by clear implication you were condoning the widespread and surreptitious flouting of firearms laws.

Simply refusing to abide by firearm laws, and hiding your unregistered, sawed-off shotgun under the floorboards of your house waiting for "the balloon to go up", is not civil disobedience. Civil disobedience as an instrument of social change must he open and organized, and to hope to be effective it must be well thought out and part of a larger strategy.

So your claim that this site disallows the discussion of civil disobedience because you were taken to task for the posts referred to above is utterly fatuous. Nothing you wrote or were chastised for laid any kind of foundation for a serious discussion of civil disobedience as a tactic in the struggle for the RKBA.

As an (http://www.thehighroad.org/announcement.php?a=20):...online discussion board dedicated to the discussion and advancement of responsible firearms ownership...the simple advocacy or condoning of violation of the law is unacceptable here.

Since whether and what forms of civil disobedience could materially advance the RKBA, exploration of that subject would need to go far beyond mere reference to refusing to follow the law.

Civil disobedience as laying the foundation for litigation.

One common use of the tactic of civil disobedience has been to get an issue in front of a court. To be effective for that purpose, the violation of the law should be carefully chosen and planned to get the issue before the right court in the right way. This has been shown to be very important in Second Amendment litigation. Much unfortunate Second Amendment case law has come out criminal defense attorneys routinely tossing in a Second Amendment challenge whenever they have a drug dealer or armed robber client facing a weapons enhancement.

There is also the question of whether this would even be useful to us at this time. There are currently over 70 major RKBA cases pending at various stages in various federal courts around the country. Many of these cases are part of an organized litigation strategy designed to begin to add clarity and dimension to the ruling in Heller and McDonald.

Civil disobedience to sway public sentiment

This was a core and very effective part of the overall strategy of the Civil Rights Movement (referring to the struggle during the 1950s and 1960s for racial equality). Let's think about why and how civil disobedience worked so well in that context.

The acts of civil disobedience, violations of law, involved very normal, benign, human acts: taking a seat on a bus for the ride home after a hard day at work; sitting at a lunch counter to have a meal; a child registering to attend school; registering to vote; voting; etc. These are normal, every day thing that White folks took for granted. And it became profoundly disturbing for many White to see other humans arrested for doing these normal, benign things simply because of the color of their skin.

A tired black woman arrested for taking a seat on a bus is something that many ordinary people could respond sympathetically to. Does anyone really think that a man arrested for the illegal possession of a gun is likely to produce anything like a similar degree of sympathy in a non-gun owner -- especially after Columbine, Virginia Tech and Sandy Hook?

Indeed the Civil Rights Movement in many ways is a poor model for the struggle for the RKBA.

Different times, different causes, different social, political and legal climates.

When Rosa Parks shook things up, her actions won wide support in editorials in major newspapers, from pulpits in houses of worship across the country and on college campus.

The Civil Rights Movement of the '50s was the culmination of 100+ years of abolitionist and civil rights activity. It had broad and deep support. The goals of the Civil Rights Movement were promoted regularly in sermons in churches and synagogues all across the nation. The Civil Rights Movement had charismatic leaders like Martin Luther King who could inspire the country.

During the days of the Civil Rights Movement of the '50s and '60s, civil disobedience, as favorably reported by the mainstream media, and as favorably commented upon on college campuses and in sermons in houses of worship across the nation, helped generate great public sympathy for the cause. That sympathy helped lead to the election of pro-civil rights legislators and executives. And that led to the enactment of pro-civil rights laws.

How has the public thus far responded to the thus far minimal "civil disobedience" of RKBA advocates? Where have there been any great outpourings of sympathy for the plight of gun owners, especially from non-gun owners -- as whites showed sympathy for the plight of non-whites during the days of the Civil Rights Movement? Where are the editorials in the New York Times and Washington Post lauding the courage of gun owners in their resistance to the oppression of anti-gun prejudice? Who has heard a pro-gun rights sermon in his church? Where are the pro-gun rights rallies on college campuses? Where are non-gun owners joining with gun owners in pro-gun rights demonstrations, just as whites joined with non-whites in marches and demonstrations during the Civil Rights Movement? Where are our charismatic leaders inspiring the nation?

During the Civil Rights Movement a largely sympathetic media was able to build widespread public sympathy for the cause. Today a popular media largely hostile to the RKBA helps build fear and antagonism.

Perhaps there are ways in which some forms of civil disobedience could help further the RKBA.

There may be no reason to a priori completely dismiss civil disobedience as a tool to further the RKBA. But any effective use of that tactic will be more complicated than just violation gun laws we don't like; and any serious discussion of the topic must also acknowledge and address that complexity.

...if the horrible and hopefully impossible revolution did happen, because we fight under the same cause: Liberty and freedom...Just remember that historically revolution as a mechanism for promoting freedom has a really lousy track record.

To illustrate that we of course have the French Revolution. We also have the Paris Commune of 1870. How about the Russian Revolution? The Chinese Revolution that gave us Mao, perhaps? How about the ouster of Basitsa in Cuba? Pol Pot in Cambodia? Anyone know what's happening in what used to be Burma? And let's not forget Iran. I'm not sure that things are all that swell in Egypt or Libya these days. Then there have been the various revolutions, often protracted, taking place with dismaying regularity in one third world country or another. The vast majority of revolutions wind up simply replacing one despot with another.

See also post 139.

wow6599

May 16, 2013, 11:04 PM

Civil disobedience is one thing, but rebellion is another

With all due respect Frank, just where is that line in the sand? King George probably said the same thing......

This may just be "Peacocking" by our fine legislature, but I like the message it sends.
Proud to be from a family who has lived in Missouri for 200 years.

303tom

May 16, 2013, 11:13 PM

With all due respect Frank, just where is that line in the sand? King George probably said the same thing......

This may just be "Peacocking" by our fine legislature, but I like the message it sends.
Proud to be from a family who has lived in Missouri for 200 years.
I Still Think We Need A Like Button !..................

CZguy

May 17, 2013, 12:08 AM

Quote:
Originally Posted by J-Bar
...Mr. Ettin, if you care to, as this thread's chief critic of Missouri's recently passed law, would you switch sides for a moment and present evidence or argument in its favor?...

No thanks. I'll pass.

Mr Ettin,

I really would like to hear your arguments in favor of this bill. I feel that we could all learn a great deal.

Frank Ettin

May 17, 2013, 12:13 AM

Civil disobedience is one thing, but rebellion is another

With all due respect Frank, just where is that line in the sand?...The line is civility -- eschewing violence and conflict, permitting yourself to be arrested, being passive, not fighting back. That's why it's called civil disobedience. It's too bad that you can't seem to understand such an obvious and simple distinction.

316SS

May 17, 2013, 12:40 AM

My point through all of this has been that this legislation does not sweep away the application of federal gun laws in Missouri as some seem to believe or wish. Any Missouri resident thinking of cobbling together a machine gun and finding refuge in this law from prosecution under the NFA would be well advised to reconsider that plan.

Instead, consider how to make the best political use of the strong support the law has garnered.

I agree with all of that.

the simple advocacy or condoning of violation of the law is unacceptable here.

From what I've read, the failure of the Canadian long gun registry I mentioned earlier came from simple non-compliance, not non-compliance as the basis for litigation. That and the huge cost of the system did sway public opinion, but not in any orchestrated way. Gun owners in Canada helped bring about the change they wanted by simply refusing to comply with the law.

There may be no reason to a priori completely dismiss civil disobedience as a tool to further the RKBA. But any effective use of that tactic will be more complicated than just violation gun laws we don't like; and any serious discussion of the topic must also acknowledge and address that complexity.

As you've pointed out in other threads, the Black Panthers are an example of a PR misstep backfiring against the RKBA. Armed black men were terrifying to enough people to result in significant push-back. However, I don't see a grass-roots, organic non-compliance movement as being necessarily bad. Rather, it might be the mandate that underpins an organized campaign against "bad" law.

A tired black woman arrested for taking a seat on a bus is something that many ordinary people could respond sympathetically to. Does anyone really think that a man arrested for the illegal possession of a gun is likely to produce anything like a similar degree of sympathy in a non-gun owner -- especially after Columbine, Virginia Tech and Sandy Hook?

This is a real problem for the RKBA. A person who will gladly drive on the interstate to their destination (dangerous) because they are afraid to fly (safe) is not going to respond to statistics about the relative risk of mass shootings.

Earlier in the thread, Frank, you mentioned that the feds might bring more resources to bear in Missouri to enforce federal law if the locals stand by. I'm not sure that is a bad thing. Americans have a keen sense of fairness, and generally don't like to see a big guy pick on a little guy. If the fed start throwing their weight around, it might sway some fence sitters.